LAWS OF FIJI

CHAPTER 48

BANKRUPTCY

Cap. 48

Ed. 1978

Bankruptcy

3

SECTION1.

Short title.2. Interpretation.

PART II-PROCEEDINGS FROM ACT OF BANKRUPTCYTO DISCHARGE

3.

Acts of bankruptcy.4.

Bankruptcy notices.

RECEIVING ORDER5.

Jurisdiction to make receiving order.6.

Conditions on which creditor may petition.7.

Proceedings and order on creditor's petition.8.

Debtor's petition and order thereon.9.

Effect of receiving order.10.

Power to appoint interim receiver.11.

Power to stay pending proceedings.12.

Power to appoint special manager.13.

Advertisement of receiving order.

PROCEEDINGS CONSEQUENT ON ORDER14.

First meeting of creditors.15.

Meetings to be governed by rules.16.

Debtor's statement of affairs.

17.

Public examination of debtor.

CHAPTER 48

BANKRUPTCY

ARRANGEMENT OF SECTIONS

PART I-PRELIMINARY

ACTS OF BANKRUPTCY

PUBLIC EXAMINATION OF THE DEBTOR

COMPOSITION OR SCHEME OF ARRANGEMENT18.

Compositions and schemes of arrangement.19.

Effect of composition or scheme.

ADJUDICATION OF BANKRUPTCY20.

Adjudication of bankruptcy where composition not accepted or approved.21.

Appointment of trustee.22.

Committee of inspection.23.

Power to accept composition or scheme after bankruptcy adjudication.

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CONTROL OVER PERSON AND PROPERTYOF DEBTOR

24.

Duties of debtor as to discovery and realization of property.25.

Arrest of debtor under certain circumstances.26.

Re-direction of debtor's letters.27.

Inquiry as to debtor's conduct, dealings and property.28.

Discharge of bankrupt.29.

Fraudulent settlements.30.

Effect of order of discharge.31.

Power for court to annul adjudication in certain cases.

PART III-ADMINISTRATION OF PROPERTY

PROOF OF DEBTS32.

Description of debts provable in bankruptcy.33.

Mutual credit and set-off.34.

Rules as to proof of debts.35.

Priority of debts.36.

Preferential claim in case of apprenticeship.37.

Landlord's power of distress in case of bankruptcy.38.

Postponement of husband's and wife's claims.

PROPERTY AVAILABLE FOR PAYMENT OFDEBTS

39.

Relation back to trustee's title.40.

Description of bankrupt's property divisible amongst creditors.41.

Provisions as to second bankruptcy.

EFFECT OF BANKRUPTCY ON ANTECEDENTAND OTHER TRANSACTIONS

42.

Restriction of rights of creditor under execution or attachment.43.

Duties of sheriff as to goods taken in execution.44.

Avoidance of certain settlements.45.

Avoidance of general assignments of book debts unless registered.46.

Avoidance of preference in certain cases.47.

Protection of bona fide transactions without notice.48.

Validity of certain payments to bankrupt and assignee.49.

Dealings with undischarged bankrupt.

REALIZATION OF PROPERTY50.

Possession of property by trustee.51.

Seizure of property of bankrupt.52.

Appropriation of proportion of pay or salary to creditors.53.

Appropriation of income of property restrained from anticipation.54.

Vesting and transfer of property.55.

Disclaimer of onerous property.56.

Powers of trustee to deal with property.57.

Powers exercisable by trustee with permission of committee of inspection.58.

Power to allow bankrupt to manage property.59.

Allowance to bankrupt for maintenance or service.

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60.

Right of trustee to inspect goods pawned, etc.61.

Limitation of trustee's powers in relation to copyright.62.

Protection of official receiver and trustee from personal liability in certaincases.

DISTRIBUTION OF PROPERTY63.

Declaration and distribution of dividends.64.

Joint and separate dividends.65.

Provisions for creditors residing at a distance, etc.66.

Right of creditor who has not proved debt before declaration of adividend.

67.

Interest on debts.68.

Final dividend.69.

No action for dividend.70.

Right of bankrupt to surplus.

PART IV-OFFICIAL RECEIVER AND STAFF

71.

Appointment of official receiver and deputy official receivers.72.

Status of official receiver.73.

Duties of official receiver as regards the debtor's conduct.74.

Duties of official receiver as to debtor's estate.

PART V-TRUSTEES IN BANKRUPTCY

OFFICIAL NAME75.

Official name of trustee.

APPOINTMENT76.

Power to appoint joint or successive trustees.77.

Proceedings in case of vacancy in office of , trustee.

CONTROL OVER TRUSTEE78.

Discretionary powers of trustee and control thereof.79.

Appeal to court against trustee.80.

Control of official receiver over trustees.

REMUNERATION AND COSTS81.

Remuneration of trustee.82.

Allowance and taxation of costs.

RECEIPTS, PAYMENTS, ACCOUNTS, AUDIT83.

Trustee to furnish list of creditors.84.

Trustee to furnish statement of accounts.85.

Books to be kept by trustee.86.

Annual statement of proceedings.87.

Trustee not to pay into private account.88.

Payment of money into bank.89.

Investment of surplus funds.90.

Audit of trustee's account.

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Ed. 1978

VACATION OF OFFICE BY TRUSTEE91.

Release of trustee.92.

Office of trustee vacated by insolvency.93.

Removal of trustee.

PART VI-CONSTITUTION, PROCEDURE AND POWERS OF COURT

JURISDICTION94.

Jurisdiction in bankruptcy.95.

Judge may exercise his powers in chambers.96.

Official receiver to make payments in accordance with directions of court.97.

General powers of the court.98.

Disqualifications of bankrupt.

JUDGMENT DEBTORS99.

Power to make receiving order in lieu of committal order.

100.

Appeals in bankruptcy.APPEALS

PROCEDURE101.

Discretionary power of court.102.

Consolidation of petitions.103.

Power to change carriage of proceedings.104.

Continuance of proceedings on death of debtor.105.

Power to stay proceedings.106.

Power to present petition aginst one partner.107.

Power to dismiss petition against some respondents only.108.

Property of partners to be vested in same trustee,109.

Actions by trustee and bankrupt's partners.

110.

Actions on joint contracts.111.

Proceedings in partnership name.112.

Court to be auxiliary to other British courts.113.

Commitment to prison.

PART VII-SUPPLEMENTAL PROVISIONS

APPLICATION OF ACT114.

Married women.115.

Exclusion of companies.116.

Application of Act in case of small estates.117.

Administration in bankruptcy of estate of person dying insolvent.

GENERAL RULES118.

Power to make general rules.

119.

Fees, etc.FEES, ETC.

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EVIDENCE120.

Gazette to be evidence.121.

Evidence of proceedings at meetings of creditors.122.

Evidence of proceedings in bankruptcy.123.

Swearing of affidavits.124.

Death of debtor or witness.125.

Certificate of appointment of trustee.

MISCELLANEOUS126.

Computation of time.127.

Service of notices.128.

Formal defect not to invalidate proceedings.129.

Exemption of deeds, etc., from stamp duty.130.

Acting of corporations, partners, etc.131.

Certain provisions to bind Crown.

UNCLAIMED FUNDS OR DIVIDENDS132.

Unclaimed and indistributed dividends or funds under this Act.

PART VIII-BANKRUPTCY OFFENCES

133.

Fraudulent debtors.134.

Undischarged bankrupt obtaining credit.135.

Frauds by bankrupts, etc.136.

Bankrupt guilty of gambling, etc.137.

Bankrupt failing to keep proper accounts.138.

Bankrupt absconding with property.139.

False claim, etc.140.

Order by court for prosecution on report of trustee.141.

Criminal liability after discharge or composition.142.

Trial and punishment of offences.143.

Form of charge.144.

Director of Public Prosecutions to act in certain cases.145.

Evidence as to frauds by agents.146.

Application of Bankruptcy Rules, 1915.

BANKRUPTCY

.cOrdinances Nos. 22 of 1944, 39 of 1965, 37 of 1966. Order 7th October, 1970. Act No. 14 of 1975

AN ACT RELATING TO BANKRUPTCY[1st May, 1945.]

PART I-PRELIMINARY

Short title1. This Act may be cited as the Bankruptcy Act.

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Interpretation2. In this Act, unless the context otherwise requires-

"affidavit" includes statutory declaration, affirmation and attestation onhonour;

"available act of bankruptcy" means any act of bankruptcy available for abankruptcy petition at the date of the presentation of the petition onwhich the receiving order is made;

"the court" means the court having jurisdiction in bankruptcy under thisAct;

"debt provable in bankruptcy" or "provable debt" includes any debt orliability by this Act made provable in bankruptcy;

"gazetted" means published in the Gazette;"general rules" includes forms;"goods" includes all chattels personal;"local bank" means any bank in Fiji;"ordinary resolution" means a resolution decided by a majority in value of

the creditors present, personally or by proxy, at a meeting of creditorsand voting on the resolution;

"prescribed" means prescribed by general rules within the meaning of thisAct;

"property" includes money, goods, things in action, land and everydescription of property whether real or personal and whether situate inFiji or elsewhere; also obligations, easements, and every description ofestate, interest, and profit, present or future, vested or contingent,arising out of or incidental to property as above defined;

"resolution" means ordinary resolution;"secured creditor" means a person holding a mortgage, charge or lien on the

property of the debtor, or any part thereof, as a security for a debt dueto him from the debtor;

"sheriff" includes any person charged with the execution of any process;"special resolution" means a resolution decided by a majority in number

and three-fourths in value of the creditors present, personally or byproxy, at a meeting of creditors and voting on the resolution;

"trustee" means the trustee in bankruptcy of a debtor's estate.

PART II-PROCEEDINGS FROM ACT OF BANKRUPTCYTO DISCHARGE

ACTS OF BANKRUPTCYActs of bankruptcy

3.-(1) A debtor commits an act of bankruptcy in each of the followingcases:-

(a) if in Fiji or elsewhere he makes a conveyance or assignment of hisproperty to a trustee or trustees for the benefit of his creditorsgenerally;

(b) if in Fiji or elsewhere he makes a fraudulent conveyance, gift, deliveryor transfer of his property, or of any part thereof;

(c) if in Fiji or elsewhere he makes any conveyance or transfer of hisproperty, or any part thereof, or creates any charge thereon, which

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would under this or any other Act be void as a fraudulent preferenceif he were adjudged bankrupt;

(d) if with intent to defeat or delay his creditors he does any of the followingthings, namely, departs out of Fiji, or being out of Fiji remains out ofFiji, or departs from his dwelling-house, or otherwise absentshimself, or begins to keep house, or removes his property or any partthereof beyond the jurisdiction of the court;

(e) if execution against him has been levied by seizure of his goods in anycivil proceedings in any court, and the goods have been either sold orheld by the sheriff for twenty-one days:

Provided that, where an interpleader summons has been taken outin regard to the goods seized, the time elapsing between the date atwhich such summons is taken out and the date at which theproceedings on such summons are finally disposed of, settled orabandoned, shall not be taken into account in calculating such periodof twenty-one days;

(f) if he files in the court a declaration of his inability to pay his debts orpresents a bankruptcy petition against himself;

(g) if a creditor has obtained a final judgment or final order against him forany amount, and, execution thereon not having been stayed, hasserved on him in Fiji, or, by leave of the court, elsewhere, abankruptcy notice under this Act, and he does not within seven daysafter service of the notice, in case the service is effected in Fiji, and incase the service is effected elsewhere, then within the time limited inthat behalf by the order giving leave to effect the service, eithercomply with the requirements of the notice or satisfy the court that hehas a counter-claim, set-off or cross-demand which equals or exceedsthe amount of the judgment debt or sum ordered to be paid, andwhich he could not set up in the action in which the judgment wasobtained, or the proceedings in which the order was obtained:

For the purposes of this paragraph and section 4, any person whois, for the time being, entitled to enforce a final judgment or finalorder, shall be deemed to be a creditor who has obtained a finaljudgment or final order;

(h) if the debtor gives notice to any of his creditors that he has suspended,or that he is about to suspend, payment of his debts.

(2) In this Act the expression "a debtor", unless the context otherwiseimplies, includes any person, whether domiciled in Fiji or not, who, at the timewhen any act of bankruptcy was done or suffered by him-

(a) was personally present in Fiji; or(b) ordinarily resided or had a place of residence in Fiji; or(c) was carrying on business in Fiji, personally, or by means of an agent or

manager; or(d) was a member of a firm or partnership which carried on business in Fiji.

Bankruptcy notices

4. A bankruptcy notice under this Act shall be in the prescribed form, andshall require the debtor to pay the judgment debt or sum ordered to be paid inaccordance with the terms of the judgment or order, or to secure or compound for

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it to the satisfaction of the creditor or the court, and shall state the consequences ofnon-compliance with the notice, and shall be served in the prescribed manner:

Provided that a bankruptcy notice-(a) may specify an agent to act on behalf of the creditor in respect of any

payment or other thing required by the notice to be made to, or doneto the satisfaction of, the creditor;

(b) shall not be invalidated by reason only that the sum specified in thenotice as the amount due exceeds the amount actually due, unless thedebtor within the time allowed for payment gives notice to thecreditor that he disputes the validity of the notice on the ground ofsuch misstatement; but, if the debtor does not give such notice, heshall be deemed to have complied with the bankruptcy notice ifwithin the time allowed he takes such steps as would have constituteda compliance with the notice had the actual amount due beencorrectly specified therein.

RECEIVING ORDERJurisdiction to make receiving order

5. Subject to the conditions hereinafter specified if a debtor commits an act ofbankruptcy the court may, on a bankruptcy petition being presented either by acreditor or by the debtor, make an order, in this Act called a receiving order, forthe protection of the estate.

Conditions on which creditor may petition

6.-(1) A creditor shall not be entitled to present a bankruptcy petitionagainst a debtor unless-

(a) the debt owing by the debtor to the petitioning creditor, or, if two ormore creditors joint in the petition, the aggregate amount of debtsowing to the several petitioning creditors, amounts to one hundreddollars; and

(b) the debt is a liquidated sum, payable either immediately or at somecertain future time; and

(c) the act of bankruptcy on which the petition is grounded has occurredwithin three months before the presentation of the petition; and

(d) the debtor is domiciled in Fiji, or within a year before the date of thepresentation of the petition has ordinarily resided, or had a dwelling-house or place of business, or has carried on business, in Fiji,personally or by means of an agent or manager, or is or within thesaid period has been a member of a firm or partnership of personswhich has carried on business in Fiji by means of a partner orpartners, or an agent or manager,

nor, where a deed of arrangement has been executed, shall a creditor be entitled topresent a bankruptcy petition founded on the execution of the deed, or on anyother act committed by the debtor in the course or for the purpose of theproceedings preliminary to the execution of the deed, in cases where he isprohibited from so doing by any law for the time being in force relating to deeds ofarrangement.

(2) If the petitioning creditor is a secured creditor, he must in his petitioneither state that he is willing to give up his security for the benefit of the creditors inthe event of the debtor being adjudged bankrupt, or give an estimate of the value of

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his security. In the latter case, he may be admitted as a petitioning creditor to theextent of the balance of the debt due to him, after deducting the value so estimated,in the same manner as if he were an unsecured creditor.

Proceedings and order on creditor's petition

7.-(1) A creditor's petition shall be verified by affidavit of the creditor, or ofsome person on his behalf having knowledge of the facts, and served in theprescribed manner.

(2) At the hearing the court shall require proof of the debt of the petitioningcreditor, of the service of the petition, and of the act of bankruptcy, or, if morethan one act of bankruptcy is alleged in the petition, of some one of the alleged actsof bankruptcy and, if satisfied with the proof, may make a receiving order inpursuance of the petition.

(3) If the court is not satisfied with the proof of the petitioning creditor's debt,or of the act of bankruptcy, or of the service of the petition, or is satisfied by thedebtor that he is able to pay his debts, or that for other sufficient cause no orderought to be made, the court may dismiss the petition.

(4) When the act of bankruptcy relied on is non-compliance with a bankruptcynotice to pay, secure or compound for a judgment debt, or sum ordered to be paid,the court may, if it thinks fit, stay or dismiss the petition on the ground that anappeal is pending from the judgment or order.

(5) Where the debtor appears on the petition, and denies that he is indebtedto the petitioner, or that he is indebted to such an amount as would justify thepetitioner in presenting a petition against him, the court, on such security (if any)being given as the court may require for payment to the petitioner of any debtwhich may be established against him in due course of law, and of the costs ofestablishing the debt, may, instead of dismissing the petition, stay all proceedingson the petition for such time as may be required for trial of the question relating tothe debt.

(6) Where proceedings are stayed, the court may, if by reason of the delaycaused by the stay of proceedings or for any other cause it thinks just, make areceiving order on the petition of some other creditor, and shall thereupon dismiss,on such terms as it thinks just, the petition in which proceedings have been stayedas aforesaid.

(7) A creditor's petition shall not, after presentation, be withdrawn withoutthe leave of the court.

Debtor's petition and order thereon

8.-(1) A debtor's petition shall allege that the debtor is unable to pay hisdebts, and the presentation thereof shall be deemed an act of bankruptcy withoutthe previous filing by the debtor of any declaration of inability to pay his debts, andthe court shall thereupon make a receiving order.

(2) A debtor's petition shall not, after presentation, be withdrawn without theleave of the court.

Effect of receiving order

9.-(1) On the making of a receiving order the offical receiver shall be therebyconstituted receiver of the property of the debtor, and thereafter, except asdirected by this Act, no creditor to whom the debtor is indebted in respect of anydebt provable in bankruptcy shall have any remedy against the property or personof the debtor in respect of the debt, or shall commence any action or other legal

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proceedings, unless with the leave of the court and on such terms as the court mayimpose.

(2) But this section shall not affect the power of any secured creditor to realizeor otherwise deal with his security in the same manner as he would have beenentitled to realize or deal with it if this section had not been passed.

Power to appoint interim receiver

10. The court may, if it is shown to be necessary for the protection of theestate, at any time after the presentation of a bankruptcy petition, and before areceiving order is made, appoint the official receiver to be interim receiver of theproperty of the debtor, or of any part thereof, and direct him to take immediatepossession thereof or of any part thereof.

Power to stay pending proceedings

11.-(1) The court may, at any time after the presentation of a bankruptcypetition, stay any action, execution or other legal process against the property orperson of the debtor, and any court in which proceedings are pending against adebtor may, on proof that a bankruptcy petition has been presented by or againstthe debtor, either stay the proceedings or allow them to continue on such terms as itmay think just.

(2) Where the court makes an order staying any action or proceedings, orstaying proceedings generally, the order may be served by sending a copy thereof,under the seal of the court, by post to the address for service of the plaintiff or otherparty prosecuting such proceeding.

Power to appoint special manager

12.-(1) The official receiver of a debtor's estate may, on the application ofany creditor or creditors, and if satisfied that the nature of the debtor's estate orbusiness or the interests of the creditors generally require the appointment of aspecial manager of the estate or business other than the official receiver, appoint amanager thereof accordingly to act until a trustee is appointed, and with suchpowers (including any of the powers of a receiver) as may be entrusted to him bythe official receiver.

(2) The special manager shall give security and account in such manner as theofficial receiver may direct.

(3) The special manager shall receive such remuneration as the creditors may,by resolution at an ordinary meeting, determine, or, in default of any suchresolution, as may be prescribed.

Advertisement of receiving order

13. Notice of every receiving order, stating the name, address and descriptionof the debtor, the date of the order, the court by which the order is made, and thedate of the petition, shall be gazetted in the prescribed manner.

PROCEEDINGS CONSEQUENT ON ORDERFirst meetings of creditors

14. As soon as may be after the making of a receiving order against a debtor ageneral meeting of his creditors (in this Act referred to as the first meeting ofcreditors) shall be held for the purpose of considering whether a proposal for acomposition or scheme of arrangement shall be accepted or whether it is expedient

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that the debtor shall be adjudged bankrupt, and generally as to the mode of dealingwith the debtor's property.

Meetings to be governed by rules15. With respect to the summoning of and proceedings at the first and other

meetings of creditors, the rules in the First Schedule shall be observed.

Debtor's statement of affairs16.-(1) Where a receiving order is made against a debtor, he shall make out

and submit to the official receiver a statement of and in relation to his affairs in theprescribed form, verified by affidavit, and showing the particulars of the debtor'sassets, debts and liabilities, the names, residences and occupations of his creditors,the securities held by them respectively, the dates when the securities wererespectively given, and such further or other information as may be prescribed or asthe official receiver may require.

(2) The statement shall be so submitted within the following times, namely:-(a) if the order is made on the petition of the debtor, within three days from

the date of the order;(b) if the order is made on the petition of a creditor, within seven days from

the date of the order;but the court may, in either case for special reasons, extend the time.

(3) If the debtor fails without reasonable excuse to comply with therequirements of this section, the court may, on the application of the officialreceiver, or of any creditor, adjudge him bankrupt.

(4) Any person stating himself in writing to be a creditor of the bankrupt may,personally or by agent, inspect the statement at all reasonable times, and take anycopy thereof or extract therefrom, but any person untruthfully so stating himself tobe a creditor shall be guilty of a contempt of court, and shall be punishableaccordingly on the application of the trustee or official receiver.

PUBLIC EXAMINATION OF THE DEBTORPublic examination of debtor

17.-(1) Where the court makes a receiving order, it shall, save as in this Actprovided, hold a public sitting, on a day to be appointed by the court, for theexamination of the debtor, and the debtor shall attend thereat, and shall beexamined as to his conduct, dealings, and property.

(2) The examination shall be held as soon as conveniently may be after theexpiration of the time for the submission of the debtor's statement of affairs.

(3) The court may adjourn the examination from time to time.(4) Any creditor who has tendered a proof, or his representative authorised in

writing, may question the debtor concerning his affairs and the causes of his failure.(5) The official receiver shall take part in the examination of the debtor, and

for the purpose may employ a barrister and solicitor if he so desires.(6) If a trustee is appointed before the conclusion of the examination, he may

take part therein.(7) The court may put such questions to the debtor as it may think expedient.(8) The debtor shall be examined upon oath, and it shall be his duty to answer

all such questions as the court may put or allow to be put to him. Such notes of theexamination as the court thinks proper shall be taken down in writing, and shall beread over either to or by the debtor and signed by him, and may thereafter, save as

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in this Act provided, be used in evidence against him; they shall also be open to theinspection of any creditor at all reasonable times.

(9) When the court is of opinion that the affairs of the debtor have beensufficiently investigated, it shall by order declare that his examination is concluded,but such order shall not be made until after the day appointed for the first meetingof creditors.

(10) Where the debtor is a lunatic or suffers from any such mental or physicalaffliction or disability as in the opinion of the court makes him unfit to attend hispublic examination, the court may make an order dispensing with such examinationor directing that the debtor be examined on such terms, in such manner and at suchplace as to the court seems expedient.

COMPOSITION OR SCHEME OF ARRANGEMENTCompositions and schemes of arrangement

18.-(1) Where a debtor intends to make a proposal for a compositon insatisfaction of his debts, or a proposal for a scheme of arrangement of his affairs, heshall, within four days of submitting his statement of affairs, or within such timethereafter as the official receiver may fix, lodge with the official receiver a proposalin writing, signed by him or by an agent specifically authorised by him for thepurpose, embodying the terms of the composition or scheme which he is desirous ofsubmitting for the consideration of his creditors, and setting out particulars of anysureties or securities proposed.

(2) In such case the official receiver shall hold a meeting of creditors, beforethe public examination of the debtor is concluded, and send to each creditor,before the meeting, a copy of the debtor's proposal, with a report thereon; and if atthat meeting a majority in number and three-fourths in value of all the creditorswho have proved, resolve to accept the proposal, it shall be deemed to be dulyaccepted by the creditors, and when approved by the court shall be binding on allthe creditors.

(3) The debtor may at the meeting amend the terms of his proposal, if theamendment is, in the opinion of the official receiver, calculated to benefit thegeneral body of creditors.

(4) Any creditor who has proved his debt may assent to or dissent from theproposal by a letter, in the prescribed form, addressed to the official receiver, so asto be received by him not later than the day preceding the meeting, and any suchassent or dissent shall have effect as if the creditor had been present and had votedat the meeting.

(5) The debtor or the official receiver may, after the proposal is accepted bythe creditors, apply to the court to approve it, and notice of the time appointed forhearing the application shall be given to each creditor who has proved.

(6) The application shall not be heard until after the conclusion of the publicexamination of the debtor. Any creditor who has proved may be heard by the courtin opposition to the application, notwithstanding that he may at a meeting ofcreditors have voted for the acceptance of the proposal.

(7) For the purpose of approving a composition or scheme by joint debtors,the court may, if it thinks fit, and on the report of the official receiver that it isexpedient so to do, dispense with the public examination of one of the joint debtorsif he is unavoidably prevented from attending the examination by illness or absencefrom Fiji.

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(8) The court shall, before approving the proposal, hear a report of the officialreceiver as to the terms thereof, and as to the conduct of the debtor, and anyobjections which may be made by or on behalf of any creditor.

(9) If the court is of opinion that the terms of the proposal are not reasonable,or are not calculated to benefit the general body of creditors, the court shall refuseto approve the proposal.

(10) If any facts are proved on proof of which the court would be requiredeither to refuse, suspend or attach conditions to the debtor's discharge, were headjudged bankrupt, the court shall refuse to approve the proposal, unless itprovides reasonable security for the payment of not less than twenty-five cents inthe dollar on all the unsecured debts provable against the debtor's estate.

(11) In any other case the court may either approve or refuse to approve theproposal.

(12) if the court approves the proposal, the approval may be testified by theseal of the court being attached to the instrument containing the terms of theproposed composition or scheme, or by the terms being embodied in an order ofthe court.

(13) A composition or scheme accepted and approved in pursuance of thissection shall be binding on all the creditors so far as relates to any debts due to themfrom the debtor or provable in bankruptcy, but shall not release the debtor fromany liability under a judgment against him in an action for seduction, or under anaffiliation order, or under a judgment against him as a co-respondent in amatrimonial cause, except to such an extent and under such conditions as the courtexpressly orders in respect of such liability.

(14) A certificate of the official receiver that a composition or scheme hasbeen duly accepted and approved shall, in the absence of fraud, be conclusive as toits validity.

(15) The provisionsenforced by the courtdisobedience of an ordercontempt of court.

(16) If default is made in payment of any instalment due in pursuance of thecomposition or scheme, or if it appears to the court, on satisfactory evidence, thatthe composition or scheme cannot, in consequence of legal difficulties, or for anysufficient cause, proceed without injustice or undue delay to the creditors or to thedebtor, or that the approval of the court was obtained by fraud, the court may, if itthinks fit, on application by the official receiver or the trustee or by any creditor,adjudge the debtor bankrupt, and annul the composition or scheme, but withoutprejudice to the validity of any sale, disposition or payment duly made or thingsduly done, under or in pursuance of the composition or scheme.

Where a debtor is adjudged bankrupt under this subsection any debt provablein other respects, which has been contracted before the adjudication, shall beprovable in the bankruptcy.

(17) If under or in pursuance of a composition or scheme a trustee isappointed to administer the debtor's property or manage his business, or todistribute the composition, section 27 and Part V shall apply as if the trustee were atrustee in a bankruptcy, and as if the terms "bankruptcy", "bankrupt", and "orderof adjudication" included respectively a composition or scheme of arrangement, acompounding or arranging debtor, and an order approving the composition orscheme.

of a composition or scheme under this section may beon application by any person interested, and anyof the court made on the application shall be deemed a

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(18) Part III shall, so far as the nature of the case and the terms of thecomposition or scheme admit, apply thereto, the same interpretation being given tothe words "trustee", "bankruptcy", "bankrupt", and "order of adjudication" as insubsection (17).

(19) No composition or scheme shall be approved by the court which does notprovide for the payment in priority to other debts of all debts directed to be so paidin the distribution of the property of a bankrupt.

(20) The acceptance by a creditor of a composition or scheme shall not releaseany person who under this Act would not be released by an order of discharge if thedebtor had been adjudged bankrupt.

Effect of composition or scheme

19. Notwithstanding the acceptance and approval of a composition or scheme,the composition or scheme shall not be binding on any creditor so far as regards adebt or liability from which, under the provisions of this Act, the debtor would notbe released by an order of discharge in bankruptcy, unless the creditor assents tothe composition or scheme.

ADJUDICATION OF BANKRUPTCYAdjudication of bankruptcy where composition not accepted or approved

20.-(1) Where a receiving order is made against a debtor, then, if thecreditors at the first meeting or any adjournment thereof by ordinary resolutionresolve that the debtor be adjudged bankrupt, or pass no resolution, or if thecreditors do not meet, or if a composition or scheme is not approved in pursuanceof this Act within fourteen days after the conclusion of the examination of thedebtor or such further time as the court may allow, the court shall adjudge thedebtor bankrupt; and thereupon the property of the bankrupt shall becomedivisible among his creditors, and shall vest in a trustee.

(2) Notice of every order adjudging a debtor bankrupt, stating the name,address and description of the bankrupt, and the date of the adjudication, shall begazetted and advertised in a local paper in the prescribed manner, and the date ofthe order shall, for the purposes of this Act, be the date of the adjudication.

Appointment of trustee

21.-(1) Where a debtor is adjudged bankrupt, or the creditors have resolvedthat he be adjudged bankrupt, the creditors may by ordinary resolution appointsome fit person, whether a creditor or not, to fill the office of trustee of theproperty of the bankrupt; or they may resolve to leave his appointment to thecommittee of inspection hereinafter mentioned.

A person shall be deemed not fit to act as trustee of the property of a bankruptwhere he has been previously removed from the office of trustee of a bankrupt'sproperty for misconduct or neglect of duty.

(2) The person so appointed shall give security in manner prescribed to thesatisfaction of the court, and the court, if satisfied with the security, shall certifythat his appointment has been duly made, unless the court objects to theappointment on the ground that it has not been made in good faith by a majority invalue of the creditors voting, or that the person appointed is not fit to act as trustee,or that his connexion with or relation to the bankrupt, or his estate or any particularcreditor makes it difficult for him to act with impartiality in the interests of thecreditors generally.

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(3) The appointment of a trustee shall take effect as from the date of thecertificate.

(4) The official receiver may be appointed the trustee by the creditors and insuch case there shall be no committee of inspection, but the official receiver may dowith the permission of the court all things which may be done by a trustee with thepermission of the committee of inspection.

(5) If a trustee is not appointed by the creditors within four weeks from thedate of the adjudication, or in the event of there being negotiations for acomposition or scheme pending at the expiration of those four weeks, then withinseven days from the close of those negotiations by the refusal of the creditors toaccept, or of the court to approve, the composition or scheme, the official receivershall report the matter to the court, and thereupon the court shall appoint some fitperson to be trustee of the bankrupt's property, and shall certify the appointment:

Provided that the creditors or the committee of inspection (if so authorised byresolution of the creditors) may, at any subsequent time, if they think fit, appoint atrustee, and, on the appointment being made and certified, the person appointedshall become trustee in the place of the person appointed by the court.

(6) When a debtor is adjudged bankrupt after the first meeting of creditors hasbeen held, and a trustee has not been appointed prior to the adjudication, theofficial receiver shall forthwith summon a meeting of creditors for the purpose ofappointing a trustee.

Committee of inspection

22.-(1) The creditors qualified to vote may, at their first or any subsequentmeeting, by resolution, appoint a committee of inspection for the purpose ofsuperintending the administration of the bankrupt's property by the trustee.

Qualifications of committee

(2) The committee of inspection shall consist of not more than five nor lessthan three persons, possessing one or other of the following qualifications:-

(a) that of being a creditor or the holder of a general proxy or generalpower of attorney from a creditor:

Provided that no creditor and no holder of a general proxy orgeneral power of attorney from a creditor shall be qualified to act as amember of the committee of inspection until the creditor has provedhis debt and the proof has been admitted; or

(b) that of being a person to whom a creditor intends to give a general proxyor general power of attorney:

Provided that no such person shall be qualified to act as a memberof the committee of inspection until he holds such a proxy or power ofattorney, and until the creditor has proved his debt and the proof hasbeen admitted.

Meetings of committee

(3) The committee of inspection shall meet at such times as they shall fromtime to time appoint, and, failing such appointment, at least once a month; and thetrustee or any member of the committee may also call a meeting of the committeeas and when he thinks necessary.

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Quorum

(4) The committee may act by a majority of their members present at ameeting, but shall not act unless a majority of the committee are present at themeeting.

Resignation of office

(5) Any member of the committee may resign his office by notice in writingsigned by him, and delivered to the trustee.

Vacation of office

(6) If a member of the committee becomes bankrupt or compounds orarranges with his creditors, or is absent from five consecutive meetings of thecommittee, his office shall thereupon become vacant.

Removal

(7) Any member of the committee may be removed by an ordinary resolutionat any meeting of creditors of which seven days' notice has been given stating theobject of the meeting.

Filling a vacancy

(8) On a vacancy occurring in the office of a member of the committee, thetrustee shall forthwith summon a meeting of creditors for the purpose of filling thevacancy, and the meeting may by resolution appoint another creditor, or otherperson eligible as above, to fill the vacancy.

Continuing members may act

(9) The continuing members of the committee, provided there be not less thantwo such continuing members, may act notwithstanding any vacancy in their body;and, where the number of members of the committee of inspection is for the timebeing less than five, the creditors may increase that number so that it does notexceed five.

If no committee court gives consent

(10) If there be no committee of inspection, any act or thing or any directionor permission by this Act authorised or required to be done or given by thecommittee may be done or given by the court on the application of the trustee, orby the official receiver, save in the case where he himself is acting as trustee.

Power to accept composition or scheme after bankruptcy adjudication

23.-(1) Where a debtor is adjudged bankrupt the creditors may, if they thinkfit, at any time after the adjudication, by a majority in number and three-fourths invalue of all the creditors who have proved, resolve to accept a proposal for acomposition in satisfaction of the debts due to them under the bankruptcy, or for ascheme of arrangement of the bankrupt's affairs; and thereupon the sameproceedings shall be taken and the same consequences shall ensue as in the case ofa composition or scheme accepted before adjudication.

If court approves

(2) If the court approves the composition or scheme, it may make an orderannulling the bankruptcy and vesting the property of the bankrupt in him or in such

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other person as the court may appoint, on such terms, and subject to suchconditions, if any, as the court may declare.

Default, etc.(3) If default is made in payment of any instalment due in pursuance of the

composition or scheme or if it appears to the court that the composition or schemecannot proceed without injustice or undue delay, or that the approval of the courtwas obtained by fraud, the court may, if it thinks fit, on application by any personinterested, adjudge the debtor bankrupt, and annul the composition or scheme, butwithout prejudice to the validity of any sale, disposition or payment duly made, orthing duly done, under or in pursuance of the composition or scheme. Where adebtor is adjudged bankrupt under this subsection all debts, provable in otherrespects, which have been contracted before the date of such adjudication, shall beprovable in the bankruptcy.

CONTROL OVER PERSON AND PROPERTY OF DEBTORDuties of debtor as to discovery and realization of property

24.-(1) Every debtor against whom a receiving order is made, shall, unlessprevented by sickness or other sufficient cause, attend the first meeting of hiscreditors, and shall submit to such examination and give such information as themeeting may require.

To discover property(2) He shall give such inventory of his property, such list of his creditors and

debtors, and of the debts due to and from them respectively, submit to suchexamination in respect of his property or his creditors, attend such other meeting ofhis creditors, wait at such times on the official receiver, special manager, or trustee,execute such powers of attorney, conveyances, deeds, and instruments andgenerally do all such acts and things in relation to his property and the distributionof the proceeds amongst his creditors, as may be reasonably required by the officialreceiver, special manager or trustee, or may be prescribed by general rules, or bedirected by the court by any special order or orders made in reference to anyparticular case, or made on the occasion of any special application by the officialreceiver, special manager, trustee or any creditor or person interested.

To aid in realization(3) He shall, if adjudged bankrupt, aid, to the utmost of his power, in the

realization of his property and the distribution of the proceeds among his creditors.

Committal(4) If a debtor wilfully fails to perform the duties imposed on him by this

section, or to deliver up possession of any part of his property which is divisibleamongst his creditors under this Act, and which is for the time being in hispossession or under his control, to the official receiver or to the trustee, or to anyperson authorised by the court to take possession of it, he shall, in addition to anyother punishment to which he may be subject, be guilty of a contempt of court, andmay be punished accordingly.

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Arrest of debtor under certain circumstances25.-(1) The court may, by warrant addressed to any police officer or

prescribed officer of the court, cause a debtor to be arrested, and any books,papers, money and goods in his possession to be seized, and him and them to besafely kept as prescribed until such time as the court may order under the followingcircumstances:-

After issue of bankruptcy notice(a) if after a bankruptcy notice has been issued under this Act, or after

presentation of a bankruptcy petition by or against him, it appears tothe court that there is probable reason for believing that he hasabsconded or is about to abscond, with a view of avoiding payment ofthe debt in respect of which the bankruptcy notice was issued, or ofavoiding service of a bankruptcy petition, or of avoiding appearanceto any such petition, or of avoiding examination, in respect of hisaffairs, or of otherwise avoiding, delaying or embarrassingproceedings in bankruptcy against him;

After presentation of petition(b) if, after presentation of a bankruptcy petition by or against him, it

appears to the court that there is probable cause for believing that heis about to remove his goods with a view of preventing or delayingpossession being taken of them by the official receiver or trustee, orthat there is probable ground for believing that he has concealed or isabout to conceal or destroy any of his goods, or any books,documents or writings which might be of use to his creditors in thecourse of his bankruptcy;

After service of petition(c) if, after service of a bankruptcy petition on him, or after a receiving

order is made against him, he removes any goods in his possessionabove the value of ten dollars, without the leave of the officialreceiver or trustee;

Attend examination(d) if, without good cause shown, he fails to attend any examination order

by the court:Provided that no arrest upon a bankruptcy notice shall be valid and protected,

unless the debtor before or at the time of his arrest is served with such bankruptcynotice.

Payment after arrest may be fraudulent preference(2) No payment or composition made or security given after arrest made

under this section shall be exempt from the provisions of this Act relating tofraudulent preferences.

Re-direction of debtor's letters26. Where a receiving order is made against a debtor, the court, on the

application of the official receiver or trustee, may from time to time order that forsuch time, not exceeding six months, as the court thinks fit, letters, telegrams,

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cablegrams, and other postal articles, addressed to the debtor at any place or placesmentioned in the order for re-direction, shall be re-directed, sent or delivered bythe Permanent Secretary for Posts and Telecommunications, or the officers actingunder him, or by any other person in charge of the transmission and receipt oftelegrams and cablegrams, to the official receiver, or the trustee, or otherwise, asthe court directs and the same shall be done accordingly.

Inquiry as to debtor's conduct, dealings and property27.-(1) The court may on the application of the official receiver or trustee, at

any time after a receiving order has been made against a debtor, summon before itthe debtor or his wife, or any person known or suspected to have in his possessionany of the estate or effects belonging to the debtor, or supposed to be indebted tothe debtor, or any person whom the court may deem capable of giving informationrespecting the debtor, his dealings or property, and the court may require any suchperson to produce any documents in his custody or power relating to the debtor, hisdealings or property.

In case of refusal(2) If any person so summoned, after having been tendered a reasonable sum,

refuses to come before the court at the time appointed or refuses to produce anysuch documents having no lawful impediment made known to the court at the timeof its sitting and allowed by it, the court may, by warrant, cause him to beapprehended and brought up for examination.

Examination on oath(3) The court may examine on oath, either by word of mouth or by written

interrogatories, any person so brought before it concerning the debtor, his dealingsor property.

Order to pay(4) If any person on examination before the court admits that he is indebted to

the debtor, the court may, on the application of the official receiver or trustee,order him to pay to the official receiver or trustee, at such time and in such manneras to the court seems expedient, the amount admitted, or any part thereof, either infull discharge of the whole amount in question or not, as the court thinks fit, with orwithout costs of the examination.

Order to deliver property(5) If any person on examination before the court admits that he has in his

possession any property belonging to the debtor, the court may, on the applicationof the official receiver or trustee, order him to deliver to the official receiver ortrustee such property or any part thereof, at such time, and in such manner, and onsuch terms, as to the court may seem just.

Examination out of Fiji(6) The court, may, if it thinks fit, order that any person who, if in Fiji, would

be liable to be brought before it under this section shall be examined in any otherplace out of Fiji.

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Discharge of bankrupt

28.-(1) A bankrupt may, at any time after being adjudged bankrupt, apply tothe court for an order of discharge, and the court shall appoint a day for hearing theapplication, but the application shall not be heard until the public examination ofthe bankrupt is concluded. The application shall, except when the court inaccordance with rules under this Act otherwise directs, be heard in open court.

Powers of court

(2) On the hearing of the application the court shall take into consideration areport of the official receiver as to the bankrupt's conduct and affairs (including areport as to the bankrupt's conduct during the proceedings under his bankruptcy),and may either grant or refuse an absolute order of discharge, or suspend theoperation of the order for a specified time, or grant an order of discharge subject toany conditions with respect to any earnings or income which may afterwardsbecome due to the bankrupt, or with respect to his after-acquired property:

Provided that where the bankrupt has committed any offence under this Act orany other offence connected with his bankruptcy, or where in any case any of thefacts specified in subsection (4) are proved, the court shall either-

(a) refuse the discharge; or(b) suspend the discharge for such period as the court thinks proper; or(c) suspend the discharge until a dividend of not less than fifty cents in the

dollar has been paid to the creditors; or(d) require the bankrupt as a condition of his discharge to consent to

judgment being entered against him by the official receiver or trusteefor any balance or part of any balance of the debts provable under thebankruptcy which is not satisfied at the date of the discharge, suchbalance or part of any balance of the debts to be paid out of the futureearnings or after-acquired property of the bankrupt in such mannerand subject to such conditions as the court may direct; but executionshall not be issued on the judgment without leave of the court, whichleave may be given on proof that the bankrupt has since his dischargeacquired property or income available towards payment of his debts.

(3) If at any time after the expiration of two years from the date of any ordermade under this section the bankrupt satisfies the court that there is no reasonableprobability of his being in a position to comply with the terms of such order, thecourt may modify the terms of the order or of any substituted order, in such mannerand upon such conditions as it may think fit.

(4) The facts hereinbefore referred to are-a) that the bankrupt's assets are not of a value equal to fifty cents in the

dollar on the amount of his unsecured liabilities, unless he satisfiesthe court that the fact that the assets are not of a value equal to fiftycents in the dollar on the amount of his unsecured liabilities hasarisen from circumstances for which he cannot justly be heldresponsible;

(b) that the bankrupt has omitted to keep such books of account as are usualand proper in the business carried on by him and as sufficientlydisclose his business transactions and financial position within thethree years immediately preceding his bankruptcy;

(c) that the bankrupt has continued to trade after knowing himself to beinsolvent;

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(d) that the bankrupt has contracted any debt provable in the bankruptcywithout having at the time of contracting it any reasonable orprobable ground of expectation (proof whereof shall lie on him) ofbeing able to pay it;

(e) that the bankrupt has failed to account satisfactorily for any loss of assetsor for any deficiency of assets to meet his liabilities;

(f) that the bankrupt has brought on, or contributed to, his bankruptcy byrash and hazardous speculations, or by unjustifiable extravagance inliving, or by gambling, or by culpable neglect of his business affairs;

(g) that the bankrupt has put any of his creditors to unnecessary expense bya frivolous or vexatious defence to any action properly broughtagainst him;

(h) that the bankrupt has brought on or contributed to his bankruptcy byincurring unjustifiable expense in bringing any frivolous or vexatiousaction;

(i) that the bankrupt has, within three months preceding the date of thereceiving order, when unable to pay his debts as they became due,given any undue preference to any of his creditors;

(j) that the bankrupt has, within three months preceding the date of thereceiving order, incurred liabilities with a view of making his assetsequal to fifty cents in the dollar on the amount of his unsecuredliabilities;

(k) that the bankrupt has, on any previous occasion, been adjudgedbankrupt, or made a composition or arrangement with his creditors;

(l) that the bankrupt has been guilty of any fraud or fraudulent breach oftrust.

Certificate that bankruptcy was caused by misfortune(5) With a view to removing any legal disqualification on account of

bankruptcy which is removed if the bankrupt obtains from the court his dischargewith a certificate to the effect that the bankruptcy was caused by misfortunewithout any misconduct on his part, the court may, if it thinks fit, grant suchcertificate, but a refusal to grant such a certificate shall be subject to appeal asprovided in section 100.

When are assets fifty cents in the dollar(6) For the purposes of this section, a bankrupt's assets shall be deemed of a

value equal to fifty cents in the dollar on the amount of his unsecured liabilitieswhen the court is satisfied that the property of the bankrupt has realized, or is likelyto realize, or with due care in realization might have realized, an amount equal tofifty cents in the dollar on his unsecured liabilities, and a report by the officialreceiver or the trustee shall be prima facie evidence of the amount of suchliabilities.

Report of official receiver(7) For the purpose of this section, the report of the official receiver shall be

prima facie evidence of the statements therein contained.

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Notice of application for discharge

(8) Notice of the appointment by the court of the day for hearing theapplication for discharge shall be published in the prescribed manner, and sentfourteen days at least before the day so appointed to each creditor who has proved,and the court may hear the official receiver and the trustee, and may also hear anycreditor. At the hearing the court may put such questions to the debtor and receivesuch evidence as it may think fit.

(9) The powers of suspending and of attaching conditions to a bankrupt'sdischarge may be exercised concurrently.

Duties of discharged bankrupt

(10) A discharged bankrupt shall, notwithstanding his discharge, give suchassistance as the trustee may require in the realization and distribution of such ofhis property as is vested in the trustee, and, if he fails to do so, he shall be guilty of acontempt of court; and the court may also, if it thinks fit, revoke his discharge, butwithout prejudice to the validity of any sale, disposition or payment duly made orthing duly done subsequent to the discharge but before its revocation.

Fraudulent settlements

29. In either or the following cases, that is to say:-(a) in the case of a settlement made before and in consideration of marriage

where the settlor is not at the time of making the settlement able topay all his debts without the aid of the property comprised in thesettlement; or

(b) in the case of any covenant or contract made in consideration ofmarriage for the future settlement on or for the settlor's wife orchildren of any money or property wherein he had not at the date ofhis marriage any estate or interest (not being money or property of orin right of his wife),

if the settlor is adjudged bankrupt or compounds or arranges with his creditors, andit appears to the court that such settlement, covenant or contract was made in orderto defeat or delay creditors or was unjustifiable having regard to the state of thesettlor's affairs at the time when it was made, the court may refuse or suspend anorder of discharge, or grant an order subject to conditions, or refuse to approve acompositon or arrangement, as the case may be, in like manner as in cases wherethe debtor has been guilty of fraud.

Effect of order of discharge

30.-(1) An order of discharge shall not release the bankrupt-(a) from any debt on a recognizance nor from any debt with which the

bankrupt may be chargable at the suit of the Crown or of any personfor any offence against any law relating to any branch of the generalrevenue of Fiji, or at the suit of the sheriff or other public officer on abail bond entered into for the appearance of any person prosecutedfor any such offence; and he shall not be discharged from suchexcepted debts unless the Chief Accountant shall certify in writing hisconsent to the bankrupt being discharged therefrom; or

(b) from any debt or liability incurred by means of any fraud or fraudulentbreach of trust to which he was a party, nor from any debt or liability

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whereof he has obtained forbearance by any fraud to which he was aparty; or

(c) from any liability under a judgment against him in an action forseduction, or under an affiliation order, or under a judgment againsthim as a co-respondent in a matrimonial cause, except to such anextent and under such conditions as the court expressly orders inrespect of such liability.

(2) An order of discharge shall release the bankrupt from all other debtsprovable in bankruptcy.

(3) An order of discharge shall be conclusive evidence of the bankruptcy, andof the validity of the proceedings therein, and in any proceedings that may beinstituted against a bankrupt who has obtained an order of discharge in respect ofany debt from which he is released by the order, the bankrupt may plead that thecause of action occurred before his discharge.

(4) An order of discharge shall not release any person who at the date of thereceiving order was a partner or co-trustee with the bankrupt, or was jointly boundor had made any joint contract with him, or any person who was surety or in thenature of a surety for him.

Power for court to annul adjudication in certain cases31.-(1) Where in the opinion of the court a debtor ought not to have been

adjudged bankrupt, or where it is proved to the satisfaction of the court that thedebts of the bankrupt are paid in full, the court may, on the application of anyperson interested, by order annul the adjudication.

Effect of annulment(2) Where an adjudication is annulled under this section all sales and

dispositions of property and payments duly made, and all acts theretofore done, bythe official receiver, trustee, or other person acting under their authority, or by thecourt, shall be valid, but the property of the debtor who was adjudged bankrupt,shall vest in such persons as the court may appoint, or, in default of any suchappointment, revert to the debtor for all his estate or interest therein on such termsand subject to such conditions, if any, as the court may declare by order.

Advertisement of order(3) Notice of the order annulling an adjudication shall be forthwith gazetted

and published in a newspaper published and circulating in Fiji.(Amended by 37 of 1966, s. 17.)

Meaning of "payment in full"(4) For the purpose of this section, any debt disputed by a debtor shall be

considered as paid in full if the debtor enters into a bond, in such sum and with suchsureties as the court approves, to pay the amount to be recovered in anyproceedings for the recovery of or concerning the debt, with costs, and any debtdue to a creditor who cannot be found or cannot be identified shall be considered aspaid in full if paid into court.

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PART III-ADMINISTRATION OF PROPERTY

PROOF OF DEBTSDescription of debts provable in bankruptcy

32.-(l) Demands in the nature of unliquidated damages arising otherwisethan by reason of a contract, promise or breach of trust shall not be provable inbankruptcy.

Creditor with notice of act of bankruptcy(2) A person having notice of any act of bankruptcy available against the

debtor shall not prove under the order for any debt or liability contracted by thedebtor subsequently to the date of his so having notice.

What may be proved(3) Save as aforesaid, all debts and liabilities, present or future, certain or

contingent, to which the debtor is subject at the date of the receiving order, or towhich he may become subject before his discharge by reason of any obligationincurred begore the date of the receiving order, shall be deemed to be debtsprovable in bankruptcy.

Estimate of uncertain debts(4) An estimate shall be made by the trustee of the value of any debt or

liability provable as aforesaid, which by reason of its being subject to anycontingency or contingencies, or for any other reason, does not bear a certainvalue.

Appeal from estimate(5) Any person aggrieved by any estimate made by the trustee as aforesaid

may appeal to the court.

If not capable of being fairly estimated(6) If, in the opinion of the court, the value of the debt or liability is incapable

of being fairly estimated, the court may make an order to that effect, andthereupon the debt or liability shall, for the purposes of this Act, be deemed to be adebt not provable in bankruptcy.

Estimation before court(7) If, in the opinion of the court, the value of the debt or liability is capable of

being fairly estimated, the court may assess the value, and the amount of the valuewhen assessed shall be deemed to be a debt provable in bankruptcy.

Meaning of "liability"(8) For the purposes of this Act, "liability" shall include-

(a) any compensation for work or labour done;(b) any obligation or possibility of an obligation to pay money or money's

worth on the breach of any express or implied convenant, contract,agreement, or undertaking, whether the breach does or does notoccur, or is or is not likely to occur or capable of occurring, before thedischarge of the debtor;

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(c) generally, any express or implied engagement, agreement, orundertaking, to pay, or capable of resulting in the payment of, moneyor money's worth; whether the payment is, as respects amount, fixedor unliquidated, as respects time, present or future, certain ordependent on any one contingency or on two or more contingencies;as to mode of valuation, capable of being ascertained by fixed rules oras matter of opinion.

Mutual credit and set-off33. Where there have been mutual credits, mutual debts or other mutual

dealings, between a debtor against whom a receiving order shall be made under thisAct and any other person proving or claiming to prove a debt under the receivingorder, an account shall be taken of what is due from the one party to the other inrespect of such mutual dealings, and the sum due from the one party shall be set offagainst any sum due from the other party, and the balance of the account, and nomore, shall be claimed or paid on either side respectively; but a person shall not beentitled under this section to claim the benefit of any set-off against the property ofa debtor in any case where he had, at the time of giving credit to the debtor, noticeof an act of bankruptcy committed by the debtor and available against him.

Rules as to proof of debts34. With respect to the mode of proving debts, the right of proof by secured

and other creditors, the admission and rejection of proofs, and the other mattersreferred to in the Second Schedule, the rules in that Schedule shall be observed.

Priority of debts35.-(1) In the distribution of the property of a bankrupt there shall be paid in

priority to all other debts-

One year's rates and taxes(a) all Crown taxes and local rates due from the bankrupt at the date of the

receiving order, and having become due and payable within twelvemonths next before that date not exceeding in the whole one year'sassessment;

Crown rents(b) all Crown rents not more than twelve months in arrears;

Clerk's or servant's wages(c) all wages or salary, whether or not earned wholly or in part by way of

commission, of any clerk or servant in respect of service rendered tothe bankrupt during four months before the date of the receivingorder, not exceeding one hundred dollars;

Labourer's wages(d) all wages of any labourer or workman not exceeding fifty dollars,

whether payable for time or for piecework, in respect of servicesrendered to the bankrupt during two months before the date of thereceiving order:

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Provided that where any labourer in husbandry has entered into acontract for the payment of a portion of his wages in a lump sum atthe end of the period of hiring, the priority under this section shallextend to the whole of such sum, or a part thereof, as the court maydecide to be due under the contract, proportionate to the time ofservice up to the date of the receiving order;

Workmen's Compensation(e) unless the bankrupt has at the date of the receiving order, under such a

contract with insurers as is mentioned in section 27 of the Workmen'sCompensation Act, rights capable of being transferred to and vestedin the workmen, all amounts due in respect of any compensation orliability for compensation under the said Act accrued before the dateof the receiving order.

(Cap. 94.)(2) Where any compensation under the Workmen's Compensation Act is a

weekly payment, the amount due in respect thereof shall, for the purposes ofparagraph (e) of subsection (1) be taken to be the amount of the lump sum forwhich the weekly payment could, if redeemable, be redeemed if the employermade an application for that purpose under the said Act.

(Cap. 94.)

They rank equally inter se(3) The foregoing debts shall rank equally between themselves, and shall be

paid in full, unless the property of the bankrupt is insufficient to meet them, inwhich case they shall abate in equal proportions between themselves.

To be paid forthwith(4) Subject to the retention of such sums as may be necessary for the costs of

administration or otherwise, the foregoing debts shall be discharged forthwith asfar as the property of the debtor is sufficient to meet them.

First charge on distress(5) In the event of a landlord or other person distraining or having distrained

on any goods or effects of a bankrupt within three months next before the date ofthe receiving order the debts to which priority is given by this section shall be a firstcharge on the goods or effects so distrained on, or the proceeds of the sale thereof:

Provided that in respect of any money paid under any such charge the landlordor other person shall have the same rights of priority as the person to whom suchpayment is made.

Insolvent estate of deceased person(6) This section shall apply, in the case of a deceased person who dies

insolvent, as if he were a bankrupt, and as if the date of his death were substitutedfor the date of the receiving order.

Application of joint and separate estates in partnership bankruptcies(7) In the case of partners the joint estate shall be applicable in the first

instance in payment of their joint debts, and the separate estate of each partnershall be applicable in the first instance in payment of his separate debts. If there is asurplus of the separate estates, it shall be dealt with as part of the joint estate. Ifthere is a surplus of the joint estate, it shall be dealt with as part of the respective

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separate estates in proportion to the right and interest of each partner in the jointestate.

All other debts pari passu(8) Subject to the provisions of this Act, all debts proved in the bankruptcy

shall be paid pari passu.

Surplus(9) If there is any surplus after payment of the foregoing debts it shall be

applied in payment of interest from the date of the receiving order at the rate offour per cent per annum on all debts proved in the bankruptcy.

Savings(10) Nothing in this section shall prejudice the provisions of any enactment

relating to deeds of arrangement respecting the payment of expenses incurred bythe trustee under a deed of arrangement which has been avoided by the bankruptcyof the debtor.

Preferential claim in case of apprenticeship36.-(1) Where at the time of the presentation of the bankruptcy petition any

person is apprenticed or is an articled clerk to the bankrupt, the adjudication ofbankruptcy shall, if either the bankrupt or apprentice or clerk gives notice inwriting to the trustee to that effect, be a complete discharge of the indenture ofapprenticeship or articles of agreement; and, if any money has been paid by or onbehalf of the apprentice or clerk to the bankrupt as a fee, the trustee may, on theapplication of the apprentice or clerk, or of some person on his behalf, pay suchsum as the trustee, subject to an appeal to the court, thinks reasonable, out of thebankrupt's property, to or for the use of the apprentice or clerk, regard being hadto the amount paid by him or on his behalf, and to the time during which he servedwith the bankrupt under the indenture or articles before the commencement of thebankruptcy, and to the other circumstances of the case.

Alternative power of trustee(2) Where it appears expedient to a trustee, he may, subject to the provisions

of section 22 (2) of the Fiji National Training Act, on the application of anyapprentice or articled clerk to the bankrupt, or any person acting on behalf of suchapprentice or articled clerk, instead of acting under the preceding provisions of thissection, transfer the indenture of apprenticeship or articles of agreement to someother person. (Section amended by 39 of 1965, s. 33.)

(Cap. 93.)

Landlord's power of distress in case of bankruptcy37. The landlord or other person to whom any rent is due from the bankrupt

may at any time, either before or after the commencement of the bankruptcy,distrain upon the goods or effects of the bankrupt for the rent due to him from thebankrupt, with this limitation, that, if such distress for rent be levied after thecommencement of the bankruptcy, it shall be available only for six month's rentaccrued due prior to the date of the order of adjudication and shall not be availablefor rent payable in respect of any period subsequent to the date when the distresswas levied, but the landlord or other person to whom the rent may be due from thebankrupt may prove under the bankruptcy for the surplus due for which the distressmay not have been available.

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Postponement of husband's and wife's claims38.-(1) Where a married woman has been adjudged bankrupt, her husband

shall not be entitled to claim any dividend as a creditor in respect of any money orother estate lent or entrusted by him to his wife for the purposes of her trade orbusiness, until all claims of the other creditors of his wife or valuable considerationin money or money's worth have been satisfied.

(2) Where the husband of a married woman has been adjudged bankrupt, anymoney or other estate of such woman lent or entrusted by her to her husband forthe purpose of any trade or business carried on by him or otherwise, shall betreated as assets of his estate, and the wife shall not be entitled to claim anydividend as a creditor in respect of any such money or other estate until all claims ofthe other creditors of her husband for valuable consideration in money or money'sworth have been satisfied.

PROPERTY AVAILABLE FOR PAYMENT OF DEBTSRelation back to trustee's title

39.-(1) The bankruptcy of a debtor, whether it takes place on the debtor'sown petition or upon that of a creditor or creditors, shall be deemed to haverelation back to, and to commence at, the time of the act of bankruptcy beingcommitted on which a receiving order is made against him, or, if the bankrupt isproved to have committed more acts of bankruptcy than one, to have relation backto, and commence at, the time of the first of the acts of bankruptcy proved to havebeen committed by the bankrupt within three months next preceding the date ofthe presentation of the bankruptcy petition; but no bankruptcy petition, receivingorder or adjudication shall be rendered invalid by reason of an act of bankruptcyanterior to the debt of the petitioning creditor.

(2) Where a receiving order is made against the judgment debtor in pursuanceof section 99, the bankruptcy of the debtor shall be deemed to have relation backto, and to commence at, the time of the order, or if the bankrupt is proved to havecommitted any previous act of bankruptcy, then to have relation back to, and tocommence at, the time of the first of the acts of bankruptcy proved to have beencommitted by the debtor within three months next preceding the date of the order.

Description of bankrupt's property divisible amongst creditors40. The property of the bankrupt divisible amongst his creditors, and in this

Act referred to as the property of the bankrupt, shall not comprise the followingparticulars:-

(a) property held by the bankrupt on trust for any other person; and(b) the tools (if any) of his trade and the necessary wearing apparel and

bedding of himself, his wife and children, to a value, inclusive of toolsand apparel and bedding, not exceeding forty dollars in the whole;

But it shall comprise the following particulars:-(i) all such property as may belong to or be vested in the bankrupt at the

commencement of the bankruptcy, or may be acquired by or devolve onhim before his discharge; and

(ii) the capacity to exercise and to take proceedings for exercising all suchpowers in or over or in respect of property as might have been exercisedby the bankrupt for his own benefit at the commencement of hisbankruptcy or before his discharge; and

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(iii) all goods, being at the commencement of the bankruptcy in thepossession, order or disposition of the bankrupt, in his trade or business,by the consent and permission of the true owner, under suchcircumstances that he is the reputed owner thereof:

Provided that things in action other than debts due or growing due to thebankrupt in the course of his trade or business shall not be deemed goods within themeaning of this section.

Provisions as to second bankruptcy

41.-(1) Where a second or subsequent receiving order is made against abankrupt, or where an order is made for the administration in bankruptcy of theestate of a deceased bankrupt, then for the purposes of any proceedings consequentupon any such order, the trustee in the last preceding bankruptcy shall be deemedto be a creditor in respect of any unsatisfied balance of the debts provable againstthe property of the bankrupt in that bankruptcy.

(2) In the event of a second or subsequent receiving order made against abankrupt being followed by an order adjudging him bankrupt, or in the event of anorder being made for the administration in bankruptcy of the estate of a deceasedbankrupt, any property acquired by him since he was last adjudged bankrupt,which at the date when the subsequent petition was presented had not beendistributed amongst the creditors in such last preceding bankruptcy, shall (subjectto any disposition thereof made by the official receiver or trustee in thatbankruptcy, without knowledge of the presentation of the subsequent petition, andsubject to the provisions of section 49) vest in the trustee in the subsequentbankruptcy or administration in bankruptcy as the case may be.

(3) Where the trustee in any bankruptcy receives notice of a subsequentpetition in bankruptcy against the bankrupt or after his decease of a petition for theadministration of his estate in bankruptcy, the trustee shall hold any property thenin his possession which has been acquired by the bankrupt since he was adjudgedbankrupt until the subsequent petition has been disposed of, and, if on thesubsequent petition an order of adjudication or an order for the administration ofthe estate in bankruptcy is made, he shall transfer all such property or the proceedsthereof (after deducting his costs and expenses) to the trustee in the subsequentbankruptcy or administration in bankruptcy, as the case may be.

EFFECT OF BANKRUPTCY ON ANTECEDENT AND OTHER TRANSACTIONSRestriction of rights of creditor under execution or attachment

42.-(1) Where a creditor has issued execution against the goods or lands of adebtor, or has attached any debt due to him, he shall not be entitled to retain thebenefit of the execution or attachment against the trustee in bankruptcy of thedebtor, unless he has completed the execution or attachment before the date of thereceiving order, and before notice of the presentation of any bankruptcy petition byor against the debtor or of the commission of any available act of bankruptcy by thedebtor.

(2) For the purposes of this Act, an execution against goods is completed byseizure and sale; an attachment of a debt is completed by receipt of the debt; and anexecution against land is completed by seizure, or, in the case of an equitableinterest, by the appointment of a receiver.

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(3) An execution levied by seizure and sale on the goods of a debtor is notinvalid by reason only of its being an act of bankruptcy, and a person whopurchases the goods in good faith under a sale by the sheriff shall, in all cases,acquire a good title to them against the trustee in bankruptcy.

Duties of sheriff as to goods taken in execution43.-(1) Where any goods of a debtor are taken in execution, and before the

sale thereof, or the completion of the execution by the receipt or recovery of thefull amount of the levy, notice is served on the sheriff that a receiving order hasbeen made against the debtor, the sheriff shall, on request, deliver the goods andany money seized or received in part satisfaction of the execution to the officialreceiver, but the costs of the execution shall be a first charge on the goods or moneyso delivered, and the official receiver or trustee may sell the goods, or an adequatepart thereof, for the purpose of satisfying the charge.

(2) Where, under an execution in respect of a judgment for a sum exceedingforty dollars, the goods of a debtor are sold or money is paid in order to avoid sale,the sheriff shall deduct his costs of the execution from the proceeds of sale or themoney paid, and retain the balance for fourteen days, and, if within that timenotice is served on him of a bankruptcy petition having been presented by oragainst the debtor, and a receiving order is made against the debtor thereon or onany other petition of which the sheriff has notice, the sheriff shall pay the balance tothe official receiver, or, as the case may be, to the trustee, who shall be entitled toretain it as against the execution creditor.

(3) Where any goods in the possession of an execution debtor at the time ofseizure by a sheriff are sold by such sheriff without any claim having been made tothe same, the purchaser of the goods so sold shall acquire a good title to suchgoods, and no person shall be entitled to recover against such sheriff or any otherperson lawfully acting under his authority, for any sale of such goods or for payingover the proceeds thereof prior to the receipt of a claim to such goods, unless it isproved that the person from whom recovery is sought had notice, or might bymaking reasonable inquiry have ascertained that such goods were not the propertyof the execution debtor:

Provided that nothing in this subsection contained shall affect the right of anyclaimant, who may prove that at the time of sale he had a title to such goods, to anyremedy to which he may be entitled against any person other than such sheriff.

Avoidance of certain settlements44.-(1) Any settlement of property, not being a settlement made before, and

in consideration of, marriage, or made in favour of a purchaser or incumbrancer ingood faith and for valuable consideration, or a settlement made on or for the wifeor children of the settlor of property which has accrued to the settlor after marriagein right of his wife, shall, if the settlor becomes bankrupt within two years after thedate of the settlement, be void against the trustee in the bankruptcy, and shall, ifthe settlor becomes bankrupt at any subsequent time within ten years after the dateof the settlement, be void against the trustee in the bankruptcy, unless the partiesclaiming under the settlement can prove that the settlor was, at the time of makingthe settlement, able to pay all his debts without the aid of the property comprised inthe settlement, and that the interest of the settlor in such property passed to thetrustee of such settlement on the execution thereof.

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Covenants in marriage settlements to settle after-acquired property(2) Any covenant or contract made by any person (hereinafter called the

settlor) in consideration of his or her marriage, either for the future payment ofmoney for the benefit of the settlor's wife or husband, or children, or for the futuresettlement on or for the settlor's wife or husband or children, of property, whereinthe settlor had not at the date of the marriage any estate or interest, whether vestedor contingent, in possession or remainder, and not being money or property in rightof the settlor's wife or husband, shall, if the settlor is adjudged bankrupt and thecovenant or contract has not been executed at the date of the commencement of hisbankruptcy, be void against the trustee in the bankruptcy, except so far as itenables the persons entitled under the covenant or contract to claim for dividend inthe settlor's bankruptcy, under or in respect of the covenant or contract, but anysuch claim to dividend shall be postponed until all claims of the other creditors forvaluable consideration in money or money's worth have been satisfied.

Transfers and payments under such covenants(3) Any payment of money (not being payment of premiums on a policy of life

assurance) or any transfer of property made by the settlor in pursuance of such acovenant or contract as aforesaid shall be void against the trustee in the settlor'sbankruptcy unless the persons to whom the payment or transfer was made proveeither-

(a) that the payment or transfer was made more than two years before thedate of the commencement of the bankruptcy; or

(b) that at the date of the payment or transfer the settlor was able to pay allhis debts without the aid of the money so paid or the property sotransferred; or

(c) that the payment or transfer was made in pursuance of a covenant orcontract to pay or transfer money or property expected to come tothe settlor from or on the death of a particular person named in thecovenant or contract, and was made within three months after themoney or property came into the possession or under the control ofthe settlor;

But, in the event of any such payment or transfer being declared void, the personsto whom it was made shall be entitled to claim for dividend under or in respect ofthe covenant or contract in like manner as if it had not been executed at thecommencement of the bankruptcy.

(4) For the purposes of this section "settlement" includes any conveyance ortransfer of property.

Avoidance of general assignments of book debts unless registered45.-(1) Where a person engaged in any trade or business makes an

assignment to any other person of his existing or future book debts or any classthereof, and is subsequently adjudicated bankrupt, the assignment shall be voidagainst the trustee as regards any book debts which have not been paid at thecommencement of the bankruptcy, unless the assignment has been registered as ifthe assignment were a bill of sale given otherwise than by way of security for thepayment of a sum of money, and the provisions of the law with respect to theregistration of bills of sale shall apply accordingly:

Provided that nothing in this section shall have effect so as to render void anyassignment of book debts due at the date of the assignment from specified debtors,

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Bankruptcy

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Ed. 1978

or of debts growing due under specified contracts, or any assignment of book debtsincluded in a transfer of a business made bona fide and for value, or any assignmentof assets for the benefit of creditors generally.

(2) For the purposes of this section "assignment" includes assignment by wayof security and other charges on book debts.

Avoidance of preference in certain cases46.-(1) Every conveyance or transfer of property, or charge thereon made,

every payment made, every obligation incurred, and every judicial proceedingtaken or suffered by any person unable to pay his debts as they become due fromhis own money in favour of any creditor, or of any person in trust for any creditor,with a view of giving such creditor, or any surety or guarantor for the debt due tosuch creditor, a preference over the other creditors, shall, if the person making,taking, paying or suffering the same is adjudged bankrupt on a bankruptcy petitionpresented within three months after the date of making, taking, paying or sufferingthe same, be deemed fraudulent and void as against the trustee in the bankruptcy.

(2) This section shall not affect the rights of any person making title in goodfaith and for valuable consideration through or under a creditor of the bankrupt.

Receiving order in lieu of committal(3) Where a receiving order is made against a judgment debtor in pursuance

of section 99, this section shall apply as if the debtor had been adjudged bankrupton a bankruptcy petition presented at the date of the receiving order.

Protection of bona fide transactions without notice47. Subject to the foregoing provisions of this Act with respect to the effect of

bankruptcy on an execution or attachment, and with respect to the avoidance ofcertain settlements, assignments and preferences, nothing in this Act shallinvalidate, in the case of a bankruptcy-

(a) any payment by the bankrupt to any of his creditors;(b) any payment or delivery to the bankrupt;(c) any conveyance or assignment by the bankrupt for valuable

consideration;(d) any contract, dealing or transaction by or with the bankrupt for valuable

consideration:Provided that both the following conditions are complied with, namely:-

(i) that the payment, delivery, conveyance, assignment, contract, dealing,or transaction, as the case may be, takes place before the date of thereceiving order; and

(ii) that the person (other than the debtor) to, by, or with whom thepayment, delivery, conveyance, assignment, contract, dealing ortransaction was made executed, or entered into, has not at the time ofthe payment, delivery, conveyance, assignment, contract, dealing ortransaction, notice of any available act of bankruptcy committed by thebankrupt before that time.

Validity of certain payments to bankrupt and assignee

48. A payment of money or delivery of property to a person subsequentlyadjudged bankrupt, or to a person claiming by assignment from him, shall,notwithstanding anything in this Act, be a good discharge to the person paying the

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Bankruptcy

35

money or delivering the property, if the payment or delivery is made before theactual date on which the receiving order is made and without notice of thepresentation of a bankruptcy petition, and is either pursuant to the ordinary courseof business or otherwise bona fide.

Dealings with undischarged bankrupt49.-(1) All transactions by a bankrupt with any person dealing with him bona

fide and for value, in respect of property, whether real or personal, acquired by thebankrupt after the adjudication, shall, if completed before any intervention by thetrustee, be valid against the trustee, and any estate or interest in such propertywhich by virtue of this Act is vested in the trustee shall determine and pass in. suchmanner and to such extent as may be required for giving effect to any suchtransaction.

For the purposes of this subsection, the receipt of any money, security ornegotiable instrument from, or by the order or direction of, a bankrupt by hisbanker, and any payment and any delivery of any security or negotiable instrumentmade to, or by the order or direction of, a bankrupt by his banker, shall be deemedto be a transaction by the bankrupt with such banker dealing with him for value.

(Amended by 37 of 1966, s. 14.)

Duties of bankers(2) Where a banker has ascertained that a person having an account with him is

an undischarged bankrupt, then, unless the banker is satisfied that the account is onbehalf of some other person, it shall be his duty forthwith to inform the trustee inthe bankruptcy or the official receiver of the existence of the account, andthereafter he shall not make any payments out of the account, except under anorder of the court or in accordance with instructions from the trustee in thebankruptcy, unless by the expiration of one month from the date of giving theinformation no instructions have been received from the trustee or the officialreceiver.

REALIZATION OF PROPERTYPossession of property by trustee

50.-(1) The trustee shall, as soon as may be, take possession of the deeds,books, and documents of the bankrupt, and all other parts of his property capableof manual delivery.

(2) The trustee shall, in relation to and for the purpose of acquiring orretaining possession of the property of the bankrupt, be in the same position as if hewere a receiver of the property appointed by the court, and the court may, on hisapplication, enforce such acquisition or retention accordingly.

(3) Where any part of the property of the bankrupt consists of stock, shares inships, shares, or any other property transferable in the books of any company,office, or person, the trustee may exercise the right to transfer the property to thesame extent as the bankrupt might have exercised if he had not become bankrupt.

(4) Where any part of the property of the bankrupt consists of things in action,such things shall be deemed to have been duly assigned to the trustee.

(5) Subject to the provisions of this Act with respect to property acquired by abankrupt after adjudication, any treasurer or other officer, or any banker,attorney, or agent of a bankrupt, shall pay and deliver to the trustee all money andsecurities in his possession or power, as such officer, banker, attorney, or agent,

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Bankruptcy

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which he is not by law entitled to retain as against the bankrupt or the trustee. If hedoes not, he shall be guilty of a contempt of court and may be punished accordinglyon the application of the trustee.

Seizure of property of bankrupt51. Any person acting under warrant of the court may seize any part of the

property of a bankrupt, or of a debtor against whom a receiving order has beenmade, in the custody or possession of the bankrupt or the debtor, or of any otherperson, and with a view to such seizure may break open any house, building orroom of the bankrupt or the debtor where the bankrupt or the debtor is supposedto be, or any building or receptacle of the bankrupt or the debtor where any of hisproperty is supposed to be; and where the court is satisfied that there is reason tobelieve that property of a bankrupt, or of a debtor against whom a receiving orderhas been made, is concealed in a house or place not belonging to him, the courtmay, if it thinks fit, grant a search warrant to any police officer or officer of thecourt, who may execute it according to its tenor.

Appropriation of proportion of pay or salary to creditors52.-(1) Where a bankrupt is an officer of the army, navy or air force or an

officer or clerk or otherwise employed or engaged in the civil service of Fiji, thetrustee shall receive for distribution amongst the creditors so much of thebankrupt's pay or salary, as the court, on the application of the trustee and with theconsent of the Minister charged with responsibility for the armed forces, or theJudicial and Legal Services Commission, the Public Service Commission or thePolice Service Commission, as the case may be, may direct. Before making anyorder under this subsection, the court shall communicate with such Minister orCommission, as to the amount, time and manner of payment to the trustee andshall obtain the written consent of the Minister or the Commission to the terms ofsuch payment.

(2) Where a bankrupt is in receipt of a salary or income other than asaforesaid, the court, on the application of the trustee, shall from time to time makesuch order as it thinks just for the payment of the salary or income, or of any partthereof, to the trustee, to be applied by him in such manner as the court may direct.

(3) Nothing in this section shall take away or abridge any power contained inany written law to dismiss a bankrupt. (Amended by Order 7th October, 1970)

Appropriation of income of property restrained from anticipation53. Where a married woman who has been adjudged bankrupt has separate

property the income of which is subject to a restraint on anticipation, the court shallhave power, on the application of the trustee, to order that, during such time as thecourt may order, the whole or some part of such income be paid to the trustee fordistribution amongst the creditors, and in the exercise of such power the court shallhave regard to the means of subsistence available for the woman and her children.

Vesting and transfer of property54.-(1) Until a trustee is appointed, the official receiver shall be the trustee

for the purposes of this Act, and, immediately on a debtor being adjudgedbankrupt, the property of the bankrupt shall vest in the trustee.

(2) On the appointment of a trustee, the property shall forthwith pass to andvest in the trustee appointed.

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Bankruptcy

3'7

(3) The property of the bankrupt shall pass from trustee to trustee, includingunder that term the official receiver when he fills the office of trustee, and shall vestin the trustee for the time being during his continuance in office, without anyconveyance, assignment or transfer whatsoever.

(4) The certificate of appointment of a trustee shall for all purposes of any lawin force in any part of Fiji requiring registration or recording of conveyances orassignments of property, be deemed to be a conveyance or assignment of property,and may be registered and recorded accordingly.

Disclaimer of onerous property55.-(1) Where any part of the property of the bankrupt consists of land of

any tenure burdened with onerous covenants, of shares or stock in companies, ofunprofitable contracts, or of any other property that is unsaleable, or not readilysaleable, by reason of its binding the possessor thereof to the performance of anyonerous act, or to the payment of any sum of money, the trustee, notwithstandingthat he has endeavoured to sell or has taken possession of the property, orexercised any act of ownership in relation thereto, but subject to the provisions ofthis section, may, by writing signed by him, at any time within twelve months afterthe first appointment of a trustee or such extended period as may be allowed by thecourt, disclaim the property:

Provided that, where any such property has not come to the knowledge of thetrustee within one month after such appointment, he may disclaim such property atany time within twelve months after he has become aware thereof or such extendedperiod as may be allowed by the court.

Effect of disclaimer(2) The disclaimer shall operate to determine, as from the date of disclaimer,

the rights, interests, and liabilities of the bankrupt and his property 'in or in respectof the property disclaimed, and shall also discharge the trustee from all personalliability in respect of the property disclaimed as from the date when the propertyvested in him, but shall not, except so far as is necessary for the purpose ofreleasing the bankrupt and his property and the trustee from liability, affect therights or liabilities of any other person.

Disclaimer of leases(3) A trustee shall not be entitled to disclaim a lease without the leave of the

court, except in any cases which may be prescribed by general rules,, and the courtmay, before or on granting such leave, require such notices to be given to personsinterested, and impose such terms as a condition of granting leave, and make suchorders with respect to fixtures, tenant's improvements, and other matters arisingout of the tenancy, as the court thinks just.

Abandonment of right of disclaimer(4) The trustee shall not be entitled to disclaim any property in pursuance of

this section in any case where an application in writing has been made to the trusteeby any person interested in the property requiring him to decide whether he willdisclaim or not, and the trustee has for a period of twenty-eight days after thereceipt of the application, or such extended period as may be allowed by the court,declined or neglected to give notice whether he disclaims the property or not; and,in the case of a contract, if the trustee, after such application as aforesaid, does not

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Ed. 1978

within the said period or extended period disclaim the contract, he shall be deemedto have adopted it.

Rescission of contracts

(5) The court may, on the application of any person who is, as against thetrustee, entitled to the benefit or subject to the burden of a contract made with thebankrupt, make an order rescinding the contract on such terms as to payment by orto either party of damages for the non-performance of the contract, or otherwise,as to the court may seem equitable, and any damages payable under the order toany such person may be proved by him, as a debt under the bankruptcy,

Vesting orders

(6) The court may, on application by any person either claiming any interest inany disclaimed property or under any liability not discharged by this Act in respectof any disclaimed property, and on hearing such persons as it thinks fit, make anorder for the vesting of the property in or delivery thereof to any person entitledthereto, or to whom . it may seem just that the same should be delivered by way ofcompensation for such liability as aforesaid, or a trustee for him, and on such' termsas the court thinks just; and on any such vesting order being made, the propertycomprised therein shall vest accordingly in the person therein named in that behalfwithout any conveyance or assignment for the purpose:

Provided that, where the property disclaimed is of a leasehold nature, thecourt shall not make a vesting order in favour of any person claiming under thebankrupt, whether as under-lessee or as mortgagee by demise, except upon theterms of making that person-

(a) subject to the same liabilities and obligations as the bankrupt wassubject to under the lease in respect of the property at the date whenthe bankruptcy petition was filed; or

(b) if the court thinks fit, subject only to the same liabilities and obligationsas if the lease had been assigned to that person at that date;

and in either event (if the case so requires) as if the lease had comprised only theproperty comprised in the vesting order; and any mortgagee or under-lesseedeclining to accept a vesting order upon such terms shall be excluded from allinterest in and security upon the property, and, if there is no person claiming underthe bankrupt who is willing to accept an order upon such terms, the court shall havepower to vest the bankrupt's estate and interest in the property in any person liableeither personally or in a representative character, and either alone or jointly withthe bankrupt to perform the lessee's convenants in the lease, freed and dischargedfrom all estates, incumbrances, and interests created therein by the bankrupt.

Disclaimer by official receiver as interim trustee

(7) Where, on the release, removal, resignation or death of a trustee inbankruptcy, an official receiver is acting as trustee, he may disclaim any propertywhich might be disclaimed by a trustee under the foregoing provisions,notwithstanding that the time described by this section for such disclaimer hasexpired, but such power of disclaimer shall be exercisable only within twelvemonths after the official receiver has become trustee in the circumstances,aforesaid, or has become aware of the existence of such property, whichever periodmay last expire.

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Proof for damages

(8) Any person injured by the operation of a disclaimer under this sectionshall be deemed to be a creditor of the bankrupt to the extent of the injury, andmay accordingly prove the same as a debt under the bankruptcy.

Powers of trustee to deal with property

56. Subject to the provisions of this Act, the trustee may do all or any of thefollowing things-

(a) sell all or any part of the property of the bankrupt (including thegoodwill of the business, if any, and the book debts due or growingdue to the bankrupt), by public auction or private contract, withpower to transfer the whole thereof to any person or company, or tosell the same in parcels;

give receipts for any money received by him, which receipts shalleffectually discharge the person paying the money from allresponsibility in respect of the application thereof;

prove, rank, claim and draw a dividend in respect of any debt due to thebankrupt;

exercise any powers, thetrustee under this Act,and other instruments,provisions of this Act;

deal with any property to which the bankrupt is beneficially entitled inthe same manner as the bankrupt might have dealt with it.

(c)

(d) capacity to exercise which is vested in theand execute any powers of attorney, deedsfor the purpose of carrying into effect the

Powers exercisable by trustee with permission of committee of inspection

57. The trustee may, with the permission of the committee of inspection, doall or any of the following things:-

(a) carry on the business of the bankrupt, so far as may be necessary for thebeneficial winding up of the same;

(b) bring, institute or defend any action or other legal proceeding relating tothe property of the bankrupt;

(c) employ a barrister and solicitor or other agent to take any proceedingsor do any business which may be sanctioned by the committee ofinspection;

(d) accept as the consideration for the sale of any property of the bankrupt asum of money payable at a future time subject to such stipulations asto security and otherwise as the committee thinks fit;

mortgage or pledge any part of the property of the bankrupt for thepurpose of raising money for the payment of his debts;

refer any dispute to arbitration, compromise any debts, claims, andliabilities, whether present or future, certain or contingent,liquidated or unliquidated, subsisting or supposed to subsist betweenthe bankrupt and any person who may have incurred any liability tothe bankrupt, on the receipt of such sums, payable at such times, andgenerally on such terms as may be agreed on;

make such compromise or other arrangement as may be thoughtexpedient with creditors, or persons claiming to be creditors, inrespect of any debts provable under the bankruptcy;

(e)

(f)

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Cap. 48 Ed. 1978

(h) make such compromise or other arrangement as may be thoughtexpedient with respect to any claim arising out of or incidental to theproperty of the bankrupt, made or capable of being made on thetrustee by any person or by the trustee on any person;

(i) divide in its existing form amongst the creditors, according to itsestimated value, any property which from its peculiar nature or otherspecial circumstances cannot be readily or advantageously sold.

The permission given for the purposes of this section shall not be a generalpermission to do all or any of the abovementioned things, but shall only be apermission to do the particular thing or things for which permission is sought in thespecified case or cases.

Power to allow bankrupt to manage property58. The trustee, with the permission of the committee of inspection, may

appoint the bankrupt himself to superintend the management of the property of thebankrupt or of any part thereof, or to carry on the trade (if any) of the bankrupt forthe benefit of his creditors, and in any other respect to aid in administering theproperty, in such manner and on such terms as the trustee may direct.

Allowance to bankrupt for maintenance or service59. The trustee may from time to time, with the permission of the committee

of inspection, make such allowance as he may think just to the bankrupt out of hisproperty for the support of the bankrupt and his family, or in consideration of hisservices if he is engaged in winding up his estate, but any such allowance may bereduced by the court.

Right of trustee to inspect goods pawned, etc.60. Where any goods of a debtor against whom a receiving order has been

made are held by any person by way of pledge, pawn or other security, it shall belawful for the official receiver or trustee, after giving notice in writing of hisintention to do so, to inspect the goods, and where such notice has been given, suchperson as aforesaid shall not be entitled to realize his security until he has given thetrustee a reasonable opportunity of inspecting the goods and of exercising his rightof redemption if he thinks fit to do so.

Limitation of trustee's powers in relation to copyright61. Where the property of a bankrupt comprises the copyright in any work or

any interest in such copyright, and he is liable to pay to the author of the workroyalties or a share of the profits in respect thereof, the trustee shall not be entitledto sell, or authorise the sale of, any copies of the work, or to perform or authorisethe performance of the work, except on the terms of paying to the author such sumsby way of royalty or share of the profits as would have been payable by thebankrupt, nor shall he, without the consent of the author or of the court, be entitledto assign the right or transfer the interest or to grant any interest in the right bylicence, except upon terms which will secure to the author payments by way ofroyalty or share of the profits at a rate not less than that which the bankrupt wasliable to pay.

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Protection of official receiver and trustee from personal liability in certain cases

62. Where the official receiver or trustee has seized or disposed of any goods,chattels, property or other effects in the possession or on the premises of a debtoragainst whom a receiving order has been made, without notice of any claim by anyperson in respect of the same, and it is thereafter made to appear that the saidgoods, chattels, property or other effects were not, at the date of the receivingorder, the property of the debtor, the official receiver or trustee shall not bepersonally liable for any loss or damage arising from such seizure or disposalsustained by any person claiming such propety, nor for the costs of any proceedingstaken to establish a claim thereto, unless the court is of opinion that the officialreceiver or trustee has been guilty of negligence in respect of the same.

DISTRIBUTION OF PROPERTYDeclaration and distribution of dividends

63.-(1) Subject to the retention of such sums as may be necessary for the costof administration, or otherwise, the trustee shall, with all convenient speed, declareand distribute dividends amongst the creditors who have proved their debts.

First dividend

(2) The first dividend, if any, shall be declared and distributed within fourmonths after the conclusion of the first meeting of creditors unless the trusteesatisfies the committee of inspection that there is sufficient reason for postponingthe declaration to a later date.

Subsequent dividends

(3) Subsequent dividends shall, in the absence of sufficient reason to thecontrary, be declared and distributed at intervals of not more than six months.

Notice of intention to declare

(4) Before declaring a dividend, the trustee shall cause notice of his intentionto do so to be gazetted in the prescribed manner, and shall also send reasonablenotice thereof to each creditor mentioned in the bankrupt's statement who has notproved his debt.

Notice of dividend

(5) When the trustee has declared a dividend he shall send to each creditorwho has proved, a notice showing the amount of the dividend and when and how itis payable, and a statement in the prescribed form as to the particulars of the estate.

Joint and separate dividends

64.-(1) Where one partner of a firm is adjudged bankrupt, a creditor towhom the bankrupt is indebted jointly with the other partners of the firm, or any ofthem, shall not receive any dividend out of the separate property of the bankruptuntil all the separate creditors have received the full amount of their respectivedebts,

(2) Where joint and separate properties are being administered, dividends ofthe joint and separate properties shall, unless otherwise directed by the court onthe application of any person interested, be declared together, and the expenses of

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and incidental to such dividends shall be fairly apportioned by the trustee betweenthe joint and separate properties, regard being had to the work done for and thebenefit received by each property.

Provisions for creditors residing at a distance, etc.

65.-(1) In the calculation and distribution of a dividend the trustee shallmake provision for debts provable in bankruptcy appearing from the bankrupt'sstatements, or otherwise, to be due to persons resident in places so distant from theplace where the trustee is acting that in the ordinary course of communication theyhave not had sufficient time to tender their proofs, or to establish them, if disputed,and also for debts provable in bankruptcy the subject of claims not yet determined.

(2) The trustee shall also make provision for any disputed proofs or claims,and for the expenses necessary for the administration of the estate or otherwise.

(3) Subject to the other provisions of this section, the trustee shall distributeas dividend all money in hand.

Right of creditor who has not proved debt before declaration of a dividend

66. Any creditor who has not proved his debt before the declaration of anydividend or dividends shall be entitled to be paid out of any money for the timebeing in the hands of the trustee any dividend or dividends he may have failed toreceive before that money is applied to the payment of any future dividend ordividends, but he shall not be entitled to disturb the distribution of any dividenddeclared before his debt was proved by reason that he has not participated therein.

Interest on debts

67.-(1) Where a debt has been proved, and the debt includes interest, or anypecuniary consideration in lieu of interest, such interest or consideration shall, forthe purposes of dividend, be calculated at a rate not exceeding five per cent perannum, without prejudice to the right of a creditor to receive out of the estate anyhigher rate of interest to which he may be entitled after all the debts proved in theestate have been paid in full.

Rules to discover relation between principal and interest

(2) In dealing with the proof of the debt, the following rules shall beobserved:-

(a) any account settled between the debtor and the creditor within threeyears preceding the date of the receiving order may be examined, andif it appears that the settlement of the account forms substantially onetransaction with any debt alleged to be due out of the debtor's estate(whether in the form of renewal of a loan or capitalization of interestor ascertainment of loans or otherwise), the account may bereopened and the whole transaction treated as one;

(b) any payments made by the debtor to the creditor before the receivingorder, whether by way of bonus or otherwise, and any sums receivedby the creditor before the receiving order from the realization of anysecurity for the debt, shall, notwithstanding any agreement to thecontrary, be appropriated to principal and interest in the proportionthat the principal bears to the sum payable as interest at the agreedrate;

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(c) where the debt due is secured and the security is realized after thereceiving order, or the value thereof is assessed in the proof, theamount realized or assessed shall be appropriated to the satisfactionof principal and interest in the proportion that the principal bears tothe sum payable as interest at the agreed rate.

Final dividend68.-(1) When the trustee has realized all the property of the bankrupt, or so

much thereof as can, in the joint opinion of himself and of the committee ofinspection, be realized without needlessly protracting the trusteeship, he shalldeclare a final dividend, but before so doing he shall give notice in mannerprescribed to the persons whose claims to be creditors have been notified to him,but not established to his satisfaction, that if they do not establish their claims to thesatisfaction of the court within a time limited by the notice, he will proceed to makea final dividend, without regard to their claims.

(2) After the expiration of the time so limited, or, if the court on applicationby any such claimant grants him further time for establishing his claim, then on theexpiration of such further time, the property of the bankrupt shall be dividedamong the creditors who have proved their debts, without regard to the claims ofany other persons.

No action for dividend69. No action for dividend shall lie against the trustee but, if the trustee

refuses to pay any dividend, the court may, if it thinks fit, order him to pay it, andalso to pay out of his own money interest thereon for the time that it is withheld,and the costs of the application.

Right of bankrupt to surplus70. The bankrupt shall be entitled to any surplus remaining after payment in

full of his creditors, with interest, as by this Act provided, and of the costs, charges,and expenses of the proceedings under the bankruptcy petition.

PART IV-OFFICIAL RECEIVER AND STAFF

Appointment of official receiver and deputy official receivers71. There shall be an official receiver of debtors' estates for Fiji and as many

deputy official receivers as may be required from time to time who shall havejurisdiction in such areas as may be specified. The official receiver and the deputyofficial receivers shall be appointed, be removable by and be under the generalauthority and directions of the Minister and they shall also be officers of the court.A deputy official receiver shall have the same powers, rights and duties within thearea for which he is appointed as an official receiver under this Act.

Status of official receiver72.-(1) The duties of the official receiver shall have relation both to the

conduct of the debtor and to the adminstration of his estate.(2) The official receiver may, for the purposes of affidavits, verifying proofs,

petitions, or other proceedings under this Act, administer oaths.

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(3) All provisions in this or any other Act, referring to the trustee in abankruptcy shall, unless the context otherwise requires, or the Act otherwiseprovides, include the official receiver when acting as trustee.

(4) The trustee shall supply the official receiver with such information, andgive him such access to and facilities for inspecting the bankrupt's books anddocuments, and generally shall give him such aid, as may be requisite for enablingthe official receiver to perform his duties under this Act.

Duties of official receiver as regards the debtor's conduct

73. As regards the debtor, it shall be the duty of the official receiver-(a) to investigate the conduct of the debtor and to report to the court,

stating whether there is reason to believe that the debtor hascommitted any act which constitutes an offence under this Act or anyenactment repealed by this Act, or which would justify the court inrefusing, suspending or qualifying an order for his discharge;

(b) to make such other reports concerning the conduct of the debtor as thecourt may direct;

(c) to take such part as he may deem fit in the public examination of thedebtor;

(d) to take such part and give such assistance in relation to the prosecutionof any fraudulent debtor as the Director of Public Prosecutions maydirect.

Duties of official receiver as to debtor's estate

74.-(1) As regards the estate of a debtor, it shall be the duty of the officialreceiver-

(a) pending the appointment of a trustee, to act as interim receiver of thedebtor's estate, and, where a special manager is not appointed, asmanager thereof;

(b) to authorise the special manager to raise money or make advances forthe purposes of the estate in any case where, in the interests of thecreditors, it appears necessary so to do;

(c) to summon and preside at the first meeting of creditors;(d) to issue forms of proxy for use at the meetings of creditors;(e) to report to the creditors as to any proposal which the debtor may have

made with respect to the mode of liquidating his affairs;(f) to advertise the receiving order, the date of the creditors' first meeting,

and of the debtor's public examination, and such other matters as itmay be necessary to advertise;

(g) to act as trustee during any vacancy in the office of trustee.(2) For the purpose of his duties as interim receiver or manager, the official

receiver shall have the same powers as if he were a receiver and manager appointedby the court, but shall, as far as practicable, consult the wishes of the creditors withrespect to the management of the debtor's property, and may for that purpose, if hethinks it advisable, summon meetings of the persons claiming to be creditors, andshall not, unless the court otherwise orders, incur any expense beyond such as isrequisite for the protection of the debtor's property or the disposing of perishablegoods:

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Provided that, when the debtor cannot himself prepare a proper statement ofaffairs, the official receiver may, subject to any prescribed conditions, and at theexpense of the estate, employ some person or persons to assist in the preparation ofthe statement of affairs.

PART V-TRUSTEES IN BANKRUPTCY

OFFICIAL NAMEOfficial name of trustee

75. The official name of a trustee in bankruptcy shall be "the trustee of theproperty of a bankrupt" (inserting the name of the bankrupt),and by that name the trustee may, in any part of Fiji or elsewhere, hold property ofevery description, make contracts, sue and be sued, enter into any engagementsbinding on himself, and his successors in office, and do all other acts necessary orexpedient to be done in the execution of his office.

APPOINTMENTPower to appoint joint or successive trustees

76.-(1) The creditors may, if they think fit, appoint more persons than one tothe office of trustee, and when more persons than one are appointed they shalldeclare whether any act required or authorised to be done by the trustee is to bedone by all or any one or more of such persons, but all such persons are in this Actincluded under the term "trustee", and shall be joint tenants of the property of thebankrupt.

(2) The creditors may also appoint persons to act as trustees in succession inthe event of one or more of the persons first named declining to accept the office oftrustee, or failing to give security, or of the appointment of any such person notbeing certified by the court.

Proceedings in case of vacancy in office of trustee77.-(1). If a vacancy occurs in the office of a trustee, the creditors in general

meeting may appoint a person to fill the vacancy, and thereupon the sameproceedings shall be taken as in the case of a first appointment.

(2) The official receiver shall, on the requisition of any creditor, summon ameeting for the purpose of filling any such vacancy.

(3) If the creditors do not, within three weeks after the occurrence of avacancy, appoint a person to fill the vacancy, the official receiver shall report thematter to the court, and the court may appoint a trustee; but in such case thecreditors or committee of inspection shall have the same power of appointing atrustee in the place of the person so appointed by the court as in the case of a firstappointment.

(4) During any vacancy in the office of trustee the official receiver shall act astrustee.

CONTROL OVER TRUSTEEDiscretionary powers of trustee and control thereof

78.-(1) Subject to the provisions of this Act, the trustee shall, in theadministration of the property of the bankrupt and in the distribution thereofamongst his creditors, have regard to any directions that may be given by resolutionof the creditors at any general meeting or by the committee of inspection, and any

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direction so given by the creditors at any general meeting shall, in case of conflict,be deemed to override any directions given by the committee of inspection.

(2) The trustee may from time to time summon general meetings of thecreditors for the purpose of ascertaining their wishes, and it shall be his duty tosummon meetings at such times as the creditors, by resolution either at the meetingappointing the trustee or otherwise, may direct, and it shall be lawful for anycreditor, with the concurrence of one-sixth in value of the creditors (includinghimself), at any time to request the trustee or official receiver to call a meeting ofthe creditors, and the trustee or official receiver shall call such meeting accordinglywithin fourteen days:

Provided that the person at whose instance the meeting is summoned shalldeposit with the trustee or the official receiver, as the case may be, a sum sufficientto pay the costs of summoning the meeting, such sum to be repaid to him out of theestate if the creditors or the court so direct.

(3) The trustee may apply to the court in manner prescribed for directions inrelation to any particular matter arising under the bankruptcy.

(4) Subject to the provisions of this Act, the trustee shall use his owndiscretion in the management of the estate and its distribution among the creditors.

Appeal to court against trustee

79. If the bankrupt or any of the creditors, or any other person, is aggrievedby any act or decision of the trustee, he may apply to the court, and the court mayconfirm, reverse or modify the act or decision complained of, and make such orderin the premises as it thinks just.

Control of official receiver over trustees

80.-(1) The official receiver shall take cognizance of the conduct of trustees,and, in the event of any trustee not faithfully performing his duties, and dulyobserving all the requirements imposed on him by Act, rules, or otherwise, withrespect to the performance of his duties, or in the event of any complaint beingmade to the official receiver by any creditor in regard thereto, the official receivershall inquire into the matter and take such action thereon as may be deemedexpedient.

(2) The official receiver may at any time require any trustee to answer anyinquiry made by him in relation to any bankruptcy in which the trustee is engaged,and, if the official receiver thinks fit, he may apply to the court to examine on oaththe trustee or any other person concerning the bankruptcy.

(3) The official receiver may also direct a local investigation to be made of thebooks and vouchers of the trustee.

REMUNERATION AND COSTSRemuneration of trustee

81.-(1) Where the creditors appoint any person to be trustee of a debtor'sestate, his remuneration (if any) shall be fixed by an ordinary resolution of thecreditors, or, if the creditors so resolve, by the committee of inspection, and shallbe in the nature of a commission or percentage, of which one part shall be payableon the amount realised by the trustee, after deducting any sums paid to securedcreditors out of the proceeds of their securities, and the other part on the amountdistributed in dividend.

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(2) If one-fourth in number or value of the creditors dissent from theresolution, or the bankrupt satisfies the court that the remuneration isunnecessarily large, the court shall fix the amount of the remuneration.

(3) The resolution shall express what expenses the remuneration is to cover,and no liability shall attach to the bankrupt's estate, or to the creditors, in respectof any expenses which the remuneration is expressed to cover.

(4) Where a trustee acts without remuneration, he shall be allowed out of thebankrupt's estate such proper expenses incurred by him in or about the proceedingsof the bankruptcy as the creditors may, with the sanction of the court, approve.

(5) A trustee shall not, under any circumstances whatsoever, make anyarrangement for or accept from the bankrupt, or any barrister and solicitor,auctioneer, or any other person that may be employed about a bankruptcy, anygift, remuneration, or pecuniary or other consideration or benefit whatsoeverbeyond the remuneration fixed by the creditors and payable out of the estate, norshall he make any arrangement for giving up, or give up, any part of hisremuneration, either as receiver, manager, or trustee, to the bankrupt or anybarrister and solicitor, or other person that may be employed about a bankruptcy.

Allowance and taxation of costs82.-(1) Where a trustee or manager receives remuneration for his services as

such, no payment shall be allowed in his accounts in respect of the performance byany other person of the ordinary duties which are required by this Act or rulesthereunder to be performed by himself.

Barrister and solicitor as trustee(2) Where the trustee is a barrister and solicitor, he may contract that the

remuneration for his services as trustee shall include all professional services.

Taxation(3) All bills and charges of barristers and solicitors, managers, accountants,

auctioneers, brokers, and other persons, not being trustees, shall be taxed by theprescribed officer, and no payments in respect thereof shall be allowed in thetrustee's accounts without proof of such taxation having been made. The taxingofficer shall satisfy himself before passing such bills and charges that theemployment of such barristers and solicitors and other persons, in respect of theparticular matters out of which such charges arise, has been duly sanctioned. Thesanction must be obtained before the employment, except in case of urgency, andin such cases it must be shown that no undue delay took place in obtaining thesanction.

Delivery of bill for taxation(4) Every such person shall, on request by the trustee (which request the

trustee shall make a sufficient time before declaring a dividend), deliver his bill ofcosts or charges to the proper officer for taxation, and, if he fails to do so withinseven days after the receipt of the request, or such further time as the court, onapplication, may grant, the trustee shall declare and distribute the dividend withoutregard to any claim by him, and thereupon any such claim shall be forfeited as wellagainst the trustee personally as against the estate.

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RECEIPTS, PAYMENTS, ACCOUNTS, AUDITTrustee to furnish list of creditors

83. The trustee or official receiver shall, whenever required by any creditor soto do, furnish and transmit to him by post a list of the creditors showing the amountof the debt due to each creditor, and shall be entitled to charge for such list the sumof two cents per folio of seventy-two words, together with the cost of the postagethereof.

Trustee to furnish statement of accounts84. It shall be lawful for any creditor, with the concurrence of one-sixth of the

creditors (including himself), at any time to call upon the trustee or official receiverto furnish and transmit to the creditors a statement of the accounts up to the date ofsuch'notice, and the trustee shall, upon the receipt of such notice, furnish andtransmit such statement of the accounts:

Provided that the person at whose instance the accounts are furnished shalldeposit with the trustee or official receiver, as the case may be, a sum sufficient topay the costs of furnishing and transmitting the accounts, which sum shall be repaidto him out of the estate if the creditors or the court so direct.

Books to be kept by trustee85. The trustee shall keep, in manner prescribed, proper books, in which he

shall from time to time cause to be made entries or minutes of proceedings atmeetings, and of such other matters as may be prescribed, and any creditor of thebankrupt may, subject to the control of court, personally or by his agent, inspectany such books.

Annual statement of proceedings86.-(1) Every trustee in a bankruptcy shall from time to time, as may be

prescribed, and not less than once in every year during the continuance of thebankruptcy, transmit to the official receiver a statement showing the proceedings inthe bankruptcy up to the date of the statement, containing the prescribedparticulars, and made out in the prescribed form.

(2) The official receiver shall cause the statements so transmitted to beexamined, and shall call the trustee to account for any misfeasance, neglect, oromission, which may appear on the said statements or in his accounts or otherwise,and may require the trustee to make good any loss which the estate of the bankruptmay have sustained by the misfeasance, neglect or omission.

Trustee not to pay into private account87. No trustee in a bankruptcy or under any composition or scheme of

arrangement shall pay any sums received by him as trustee into his private bankingaccount.

Payments of money into bank88.-(1) A Bankruptcy Estates Account shall be kept by the official receiver

with such bank as the Chief Accountant* may direct, and all moneys received byhim in respect of proceedings under the provisions of this Act shall be paid to thataccount.

* Delegated to Administrator-General by Notice 30th July, 1968

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(2) Every trustee in bankruptcy shall in such manner and at such times as theofficial receiver shall direct pay the money received by him to the BankruptcyEstates Account at such bank as may be authorised under subsection (1), and theofficial receiver shall furnish him with a certificate of receipt of the money so paid:

Provided that-(a) if it appears to the committee of inspection that, for the purpose of

carrying on the debtor's business or obtaining advances, or becauseof the probable amount of the cash balance, or if the committee shallsatisfy the court that for any other reason it is for the advantage of thecreditors that the trustee should have an account with the local bank,the court shall, on the application of the commitee of inspection,authorise the trustee to make his payments into and out of such localbank as the committee may select;

(b) in any bankruptcy, composition or scheme of arrangement in which theoffical receiver is acting as trustee, or in which a trustee is actingwithout a committee of inspection, the court may, if for specialreasons it thinks fit to do so, upon the application of the officialreceiver or other trustee, authorise the trustee to make his paymentsinto and out of such local bank as the court may direct.

(3) Where the trustee opens an account in a local bank, he shall open andkeep it in the name of the debtor's estate, and any interest receivable in respect ofthe account shall be part of the assets of the estate, and the trustee shall make hispayments into and out of the local bank in the prescribed manner.

(4) Subject to any general rules relating to small bankruptcies under theprovision of section 116, where the debtor at the date of the receiving order has anaccount at a bank, such account shall not be withdrawn until the expiration of sevendays from the day appointed for the first meeting of creditors, unless the court, forthe safety of the account, or other sufficient cause, orders the withdrawal of theaccount.

(5) If a trustee at any time retains for more than ten days a sum exceeding onehundred dollars, or such other amount as the court in any particular case authoriseshim to retain, then, unless he explains the retention to the satisfaction of the court,he shall pay interest on the amount so retained in excess at the rate of twenty percent per annum, and shall have no claim to remuneration, and may be removedfrom his office by the court, and shall be liable to pay any expenses occasioned byreason of his default.

(6) All payments out of money standing to the credit of the official receiver inthe Bankruptcy Estates Account shall be made by the said bank in the prescribedmanner.

Investment of surplus funds89.-(1) Whenever the cash balance standing to the credit of the Bankruptcy

Estates Account is in excess of the amount which in the opinion of the officialreceiver is required for the time being to answer demands in respect of bankrupts'estates, the official receiver may place the same or any part thereof on fixed depositwith the bank.

(2) Whenever any money so placed on deposit is, in the opinion of the officialreceiver, required to answer any demands in respect of bankrupts' estates, theofficial receiver shall thereupon withdraw such money from fixed deposit and repaythe same to the credit of the cash balance of the Bankruptcy Estates Account.

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(3) All interest accruing from any money so placed on deposit shall be paid bythe official receiver to the credit of a separate account entitled the BankruptcyContingency Fund at such bank as the *Chief Accountant may direct. The officialreceiver may in his discretion invest any money paid to the credit of such fund inBritish Government securities. Where it appears that it is in the public interest todo so and that other funds are not available or properly chargeable the court may,on the application of the official receiver, authorise him to employ money in theBankruptcy Contingency Fund to defray the cost in whole or in part of any of thefollowing:-

(a) the prosecution of any debtor for any bankruptcy offences alleged tohave been committed by him;

(b) the institution of proceedings and the payment of expenses of witnesses(if any) for the discovery or recovery of property belonging to anydebtor;

(c) the institution of proceedings to set aside an alleged fraudulentpreference;

(d) the employment of a barrister and solicitor in matters connected with anestate which by reason of their difficulty or other good cause cannotbe dealt with by the official receiver himself;

(e) the employment of interpreters in cases where the court is unable toprovide an interpreter;

(f) the payment of expenses involved in arresting a debtor and bringing himbefore the court;

(g) any other expenditure which the court may deem fit.The court may in its discretion order that the fund be reimbursed in whole or in

part in the event of any money being recovered as a result of the expenditure soauthorised.

Audit of trustee's accounts

90.-(1) Every trustee shall, at such times as may be prescribed, but not lessthan twice in each year during his tenure of office, send to the official receiver anaccount of his receipts and payments as such trustee.

(2) The account shall be in a prescribed form, shall be made in duplicate, andshall be verified by statutory declaration in the prescribed form.

(3) The official receiver shall cause the accounts so sent to be audited, and, forthe purposes of the audit, the trustee shall furnish the auditor with such vouchersand information as the auditor may require, and the auditor may at any timerequire the production of and inspect any books or accounts kept by the trustee.

(4) When any such account has been audited, one copy thereof shall be filedand kept by the official receiver, and the other copy shall be filed with the court,and each copy shall be open to the inspection of any creditor, or of the bankrupt orof any person interested.

VACATION OF OFFICE BY TRUSTEERelease of trustee

91.-(1) When the trustee has realized all the property of the bankrupt, or somuch thereof as can, in his opinion, be realized without needlessly protracting thetrusteeship, and distributed a final dividend, if any, or has ceased to act by reason

* Delegated to Administrator-General by Notice 30th July, 1968.

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of a composition having been approved, or has resigned, or has been removed fromhis office, the court shall, on his application, cause a report on his accounts to beprepared, and, on his complying with all the requirements of the court, shall takeinto consideration the report, and any objection which may be urged by anycreditor or person interested against the release of the trustee, and shall eithergrant or withhold the release accordingly.

(2) Where the release of a trustee is withheld, the court may, on theapplication of any creditor or person interested, make such order as it thinks just,charging the trustee with the consequences of any act or default he may have doneor made contrary to his duty.

(3) An order of the court releasing the trustee shall discharge him from allliability in respect of any act done or default made by him in the administration ofthe affairs of the bankrupt, or otherwise in relation to his conduct as trustee, butany such order may be revoked on proof that it was obtained by fraud or bysuppression or concealment of any material fact.

(4) The foregoing provisions of this section shall apply to the official receiverwhen he is, or is acting as, trustee, and when the official receiver has been releasedunder this section he shall continue to act as trustee for any subsequent purposes ofthe administration of the debtor's estate, but no liability shall attach to himpersonally by reason of his so continuing in respect of any act done, default made,or liability incurred before his release.

(5) Where the trustee has not previously resigned or been removed, hisrelease shall operate as a removal of him from his office and thereupon the officialreceiver shall be the trustee.

(6) Where, on the release of a trustee, the official receiver is, or is acting as,trustee, no liability shall attach to him personally in respect of any act done ordefault made, or liability incurred, by any prior trustee.

Office of trustee vacated by insolvency

92. If a receiving order is made against a trustee, he shall thereby vacate hisoffice of trustee.

Removal of trustee

93.-(1) The creditors may, by ordinary resolution, at a meeting speciallycalled for that purpose, of which seven days' notice has been given, remove atrustee appointed by them, and may, at the same or any subsequent meeting,appoint another person to fill the vacancy as hereinafter provided in case of avacancy in the office of trustee.

(2) If the court is of opinion-(a) that a trustee appointed by the creditors is guilty of misconduct or fails

to perform his duties under this Act; or(b) that his trusteeship is being needlessly protracted without any probable

advantage to the creditors; or(c) that he is by reason of unsoundness of mind, or continued sickness or

absence, incapable of performing his duties; or(d) that his connexion with or relation to the bankrupt or his estate, or any

particular creditor, might make it difficult for him to act withimpartiality in the interest of the creditors generally,

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or where in any other matter he has been removed from office on the ground ofmisconduct, the court may remove him from his office.

(Amended by 37 of 1966, s. 14.)

PART VI-CONSTITUTION, PROCEDURE AND POWERS OF COURT

Jurisdiction in bankruptcy94. The court having jurisdiction in bankruptcy shall be the Supreme Court:Provided that the Chief Justice may by order delegate all or any part of the

jurisdiction of the Supreme Court in bankruptcy to any magistrates' court, eithergenerally or for the purpose of any particular case or class of cases.

Judge may exercise his powers in chambers95. Subject to the provisions of this Act, and to general rules, a judge of the

court may exercise in chambers the whole or any part of his powers.

Official receiver to make payments in accordance with directions of court96. Where any moneys or funds have been received by the official receiver

under this Act and the court makes an order declaring that any person is entitled tosuch moneys or funds, the official receiver shall make payment accordingly to thatperson.

General powers of the court97.-(1) Subject to the provisions of this Act, the court shall have full power

to decide all questions of priorities, and all other questions whatsoever, whether oflaw or of fact, which may arise in any case of bankruptcy coming within itscognizance, or which the court may deem it expedient or necessary to decide for thepurpose of doing complete justice or making a complete distribution of property inany such case.

(2) Where default is made by a trustee, debtor or other person in obeying anyorder or direction given by the official receiver, the court may on the application ofthe official receiver order such defaulting trustee, debtor or person to comply withthe order or directions so given; and the court may also, if it thinks fit upon anysuch application, make an immediate order for the committal of such defaultingtrustee, debtor or person:

Provided that the power given by this subsection shall be deemed to be inaddition to and not in substitution for any other right or remedy in respect of suchdefault.

Disqualifications of bankrupt98.-(1) Where a debtor is adjudged bankrupt, he shall be disqualified from-

(a) being appointed or acting as a justice of the peace; or(b) being elected to, or holding or exercising the office of mayor or member

of a town council, or chairman or member of a district council, ormember of a school committee. (Substituted by 14 of 1975, s. 9.)

(2) If a person is adjudged bankrupt whilst holding the office of justice of thepeace, mayor or member of a town council, chairman or member of a districtcouncil or member of a school committee, his office shall thereupon becomevacant. (Substituted by 14 of 1975, s. 9.)

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(3) The disqualifications to which a bankrupt is subject under this section shallbe removed and cease if and when-

(a) the adjudication of bankruptcy against him is annulled; or(b) a period of five years has elapsed from the date of his discharge; or(c) he obtains from the court his discharge with a certificate to the effect

that his bankruptcy was caused by misfortune without anymisconduct on his part.

The court may grant or withhold such certificate as it thinks fit, but any refusalof such certificate shall be subject to appeal as provided in section 100.

JUDGMENT DEBTORSPower to make receiving order in lieu of committal order

99. Where application is made by a judgment creditor to the court for thecommittal of a judgment debtor, the court may, if it thinks fit, decline to commit,and in lieu thereof, with the consent of the judgment creditor and on payment byhim of the prescribed fee, make a receiving order against the debtor. In such casethe judgment debtor shall be deemed to have committed an act of bankruptcy atthe time the order is made, and the provisions of this Act, except Part VIII, shallapply as if for references to the presentation of a petition by or against a personthere were substituted references to the making of such a receiving order.

APPEALSAppeals in bankruptcy

100.-(1) The court may review, rescind or vary any order made by it.(2) Orders of a magistrates' court in bankruptcy matters shall, at the instance

of the person aggrieved, be subject to appeal but no appeal shall be entertainedexcept in conformity with such general rules as may for the time being be in force inrelation to the appeal.

(3) Where by this Act an appeal to the court is given against any decision ofthe official receiver, the appeal shall be brought within twenty-one days from thetime when the decision appealed against is pronounced or made.

PROCEDUREDiscretionary power of court

101.-(1) Subject to the provisions of this Act and to general rules, the costsof and incidental to any proceeding in court under this Act shall be in the discretionof the court.

Adjournment(2) The court may at any time adjourn any proceedings before it upon such

terms, if any, as it may think fit to impose.

Amendment

(3) The court may at any time amend any written process or proceeding underthis Act upon such terms, if any, as it may think fit to impose.

Extension of ti me(4) Where by this Act or by general rules, the time for doing any act is limited,

the court may extend the time either before or after the expiration thereof uponsuch terms, if any, as it may think fit to impose.

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Evidence(5) Subject to general rules, the court may in any matter take the whole or any

part of the evidence either viva voce, or by interrogatories, or upon affidavit, or,out of Fiji, by commission.

Consolidation of petitions102. Where two or more bankruptcy petitions are presented against the same

debtor or against joint debtors, the court may consolidate the proceedings, or anyof them, on such terms as the court thinks fit.

Power to change carriage of proceedings103. Where the petitioner does not proceed with due diligence on his petition,

the court may substitute as petitioner any other creditor to whom the debtor maybe indebted in the amount required by this Act in the case of the petitioningcreditor.

Continuance of proceedings on death of debtor104. If a debtor by or against whom a bankruptcy petition has been presented

dies, the proceedings in the matter shall, unless the court otherwise orders, becontinued as if he were alive.

Power to stay proceedings105. The court may at any time, for sufficient reason, make an order staying

the proceedings under a bankruptcy petition, either altogether or for a limitedtime, on such terms and subject to such conditions as the court may think just.

Power to present petition against one partner106. Any creditor whose debt is sufficient to entitle him to present a

bankruptcy petition against all the partners of a firm may present a petition againstany one or more partners of the firm without including the others.

Power to dismiss petition against some respondents only107. Where there are more respondents than one to a petition, the court may

dismiss the petition as to one or more of them, without prejudice to the effect of thepetition as against the other or others of them.

Property of partners to be vested in same trustee108. Where a receiving order has been made on a bankruptcy petition by or

against one member of a partnership, any other bankruptcy petition by or against amember of the same partnership shall be filed with the first-mentioned petition,and, unless the court otherwise directs, the same trustee or receiver shall beappointed as may have been appointed in respect of the property of the firstmentioned member of the partnership, and the court may give such directions forconsolidating the proceedings as it thinks just.

Actions by trustee and bankrupt's partners109. Where a member of a partnership is adjudged bankrupt, the court may

authorise the trustee to commence and prosecute any action in the names of thetrustee and of the bankrupt's partner; and any release by such partner of the debtor demand to which the action relates shall be void; but notice of the application for

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authority to commence the action shall be given to him, and he may show causeagainst it, and on his application the court may, if it thinks fit, direct that he shallreceive his proper share of the proceeds of the action, and if he does not claim anybenefit therefrom, he shall be indemnified against costs in respect thereof as thecourt directs.

Actions on joint contracts110. Where a bankrupt is a contractor in respect of any contract jointly with

any person or persons, such person or persons may sue or be sued in respect of thecontract without the joinder of the bankrupt.

Proceedings in partnership name111. Any two or more persons, being partners, or any person carrying on

business under a partnership name, may take proceedings or be proceeded againstunder this Act in the name of the firm, but in such case the court may, onapplication by any person interested, order the names of the persons who arepartners in such firm or the name of such person to be disclosed in such manner andverified on oath or otherwise, as the court may direct.

Court to be auxiliary to other British courts112. The Fiji court and all the officers thereof, shall, in. all matters of

bankruptcy, act in aid of and be auxiliary to every British court elsewhere havingjurisdiction in bankruptcy or insolvency, and an order of the court seeking aid, witha request to the Fiji court, shall be deemed sufficient to enable the Fiji court toexercise, in regard to the matters directed by the order, such jurisdiction as eitherthe court which made the request, or the Fiji court, could exercise in regard tosimilar matters within their respective jurisdiction.

Commitment to prison113. Where the court commits any person to prison, the commitment may be

to such convenient prison as the court thinks expedient, and, if the officer in chargeof any prison refuses to receive any person so committed, he shall on conviction beliable for every such refusal to a fine not exceeding two hundred dollars.

PART VII-SUPPLEMENTAL PROVISIONS

APPLICATION OF ACTMarried women

114.-(1) Every married woman who carries on a trade or business, whetherseparately from her husband or not, shall be subject to the bankruptcy laws as if shewere feme-sole.

(2) Where a married woman carries on a trade or business and a finaljudgment or order for any amount has been obtained against her, whether or notexpressed to be payable out of her separate property, that judgment or order shallbe available for bankruptcy proceedings against her by a bankruptcy notice asthough she were personally bound to pay the judgment debt or sum ordered to bepaid.

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Exclusion of companies115. A receiving order shall not be made against any corporation or against

any association or company registered under the Companies Act or any enactmentrepealed by that Act.

(Cap. 247.)

Application of Act in case of small estates116. Where a petition is presented by or against a debtor, if the court is

satisfied, by affidavit or otherwise, or the official receiver reports to the court, thatthe property of the debtor is not likely to exceed in value six hundred dollars, thecourt may make an order that the debtor's estate be administered in a summarymanner, and thereupon the provisions of this Act shall be subject to the followingmodifications:-

(a) if the debtor is adjudged bankrupt the official receiver shall be thetrustee in the bankruptcy;

(b) there shall be no committee of inspection, but the official receiver maydo, with the permission of the court, all things which may be done bythe trustee with the permission of the committee of inspection;

(c) such other modifications may be made in the provisions of this Act asmay be prescribed by general rules with the view of saving expenseand simplifying procedure, but nothing in this section shall permit themodification of the provisions of this Act relating to the examinationor discharge of the debtor:

Provided that the creditors may at any time, by special resolution, resolve thatsome person other than the official receiver be appointed trustee in the bankruptcy,and thereupon the bankruptcy shall proceed as if an order for summaryadministration had not been made.

Administration in bankruptcy of estate of person dying insolvent117.-(1) Any creditor of a deceased debtor whose debt would have been

sufficient to support a bankruptcy petition against the debtor, had he been alive,may present to the court a petition in the prescribed form praying for an order forthe administration of the estate of the deceased debtor, according to the law ofbankruptcy.

The order(2) Upon the prescribed notice being given to the personal representative of

the deceased debtor, the court may, in the prescribed manner, upon proof of thepetitioner's debt, unless the court is satisfied that there is a reasonable probabilitythat the estate will be sufficient for the payment of the debts owing by the deceased,make an order for the administration in bankruptcy of the deceased debtor's estate,or may, upon cause shown, dismiss the petition with or without costs.

Property to vest in official receiver(3) Upon an order being made for the administration of a deceased debtor's

estate, the property of the debtor shall vest in the official receiver, as trusteethereof, and he shall forthwith proceed to realize and distribute it in accordancewith the provisions of this Act:

Provided that the creditors shall have the same powers as to appointment oftrustees and committees of inspection as they have in other cases where the estateof a debtor is being administered or dealt with in bankruptcy, and the provisions of

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this Act, relating to trustees and committees of inspection, shall apply to trusteesand committees of inspection appointed under the power so conferred.

If no committee of inspection is appointed, any act or thing or any direction orpermission which might have been done or given by a committee of inspection maybe done or given by the court.

Application of Act(4) With the modifications hereinafter mentioned, all the provisions of Part

III (relating to the administration of the property of a bankrupt) and, subject to anymodifications that may be made therein by general rules under subsection (10), thefollowing provisions, namely, section 27 (which relates to inquiries as to thedebtor's conduct, dealings and property), section 82 (which relates to the costs ofthe trustees, managers, and other persons), section 116 (which relates to thesummary administration of small estates), and subsection (4) of section 91 so far asit relates to the effect of the release of the official receiver shall, so far as the sameare applicable, apply to the case of an administration order under this section inlike manner as to an order of adjudication under this Act, and section 37 shall applyas if for the reference to an order of adjudication there were substituted a referenceto an administration order under this section.

Priority of claims(5) In the administration of the property of the deceased debtor under an

order of administration, the official receiver or trustee shall have regard to anyclaim by the personal representative of the deceased debtor to payment of theproper funeral and testamentary expenses incurred by him in and about thedebtor's estate, and such claims shall be deemed a preferential debt under the orderand shall, notwithstanding anything to the contrary in the provisions of this Actrelating to the priority of other debts, be payable in full, out of the debtor's estate,in priority to all other debts.

Surplus(6) If, on the administration of a deceased debtor's estate, any surplus remains

in the hands of the official receiver or trustee, after payment in full of all the debtsdue from the debtor, together with the costs of the administration and interest asprovided by this Act in case of bankruptcy, such surplus shall be paid over to thepersonal representative of the deceased debtor's estate, or dealt with in such othermanner as may be prescribed.

Effect of notice to personal representative of the presentation of the petition(7) Notice to the personal representative of a deceased debtor of the

presentation by a creditor of a petition under this section shall, in the event of anorder for administration being made thereon, be deemed to be equivalent to noticeof an act of bankruptcy, and after such notice no payment or transfer of propertymade by the personal representative shall operate as a discharge to him as betweenhimself and the official receiver or trustee; save as aforesaid nothing in this sectionshall invalidate any payment made or any act or thing done in good faith by thepersonal representative before the date of the order for administration.

Personal representative may present petition(8) A petition for the administration of the estate of a deceased debtor under

this section may be presented by the personal representative of the debtor, and,

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where a petition is so presented by such a representative, this section shall applysubject to such modifications as may be prescribed by general rules made undersubsection (10).

"Creditor"(9) Unless the context otherwise requires, "creditor", in this section, means

one or more creditors qualified to present a bankruptcy petition as in this Actprovided.

Rules

(10) General rules for carrying into effect the provisions of this section may bemade in the same manner and to the like effect and extent as in bankruptcy.

GENERAL RULESPower to make general rules

118. The Chief Justice may, from time to time, make general rules for carryinginto effect the objects of this Act.

FEES, ETC.Fees, etc.

119. The Chief Justice may, from time to time, prescribe a scale of fees andpercentages to be charged for or in respect of proceedings under the provisions ofthis Act.

EVIDENCEGazette to be evidence

120.-(1) A copy of the Gazette containing any notice inserted therein inpursuance of this Act shall be evidence of the facts stated in the notice.

(2) The production of a copy of the Gazette containing any notice of areceiving order, or of an order adjudging a debtor bankrupt, shall be conclusiveevidence in all legal proceedings of the order having been duly made, and of itsdate.

Evidence of proceedings at meetings of creditors

121.-(1) A minute of proceedings at a meeting of creditors under theprovisions of this Act, signed at the same or the next ensuing meeting, by a persondescribing himself as, or appearing to be, chairman of the meeting at which theminute is signed, shall be received in evidence without further proof.

(2) Until the contrary is proved, every meeting of creditors in respect of theproceedings whereof a minute has been so signed shall be deemed to have beenduly convened and held, and all resolutions passed or proceedings had thereat tohave been duly passed or had.

Evidence of proceedings in bankruptcy

122. Any petition or copy of a petition in bankruptcy, any order or certificateor copy of an order or certificate made by the court, any instrument or copy of aninstrument, affidavit or document made or used in the course of any bankruptcyproceedings or other proceedings had under the provisions of this Act, shall, if it

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appears to be sealed with the seal of the court or purports to be signed by any judgethereof, or is certified as a true copy by the Chief Registrar thereof, be receivable inevidence in all legal proceedings whatsoever.

Swearing of affidavits

123. Subject to general rules, any affidavit to be used in the court may besworn before any person authorised to administer oaths in the court, or before amagistrate or a justice of the peace for the Division where it is sworn, or, in the caseof a person residing out of Fiji, before any person qualified to administer oaths inthe country where he resides (he being certified to be qualified as aforesaid by anoverseas representative of Fiji, or by a notary public).

(Amended by 37 of 1966, s. 14. and 14 of 1975, s. 9.)

Death of debtor or witness

124. In the case of the death of the debtor or his wife, or of a witness whoseevidence has been received by the court in any proceeding under the provisions ofthis Act, the deposition of the person so deceased, purporting to be sealed with theseal of the court, or a copy thereof purporting to be so sealed, shall be admitted asevidence of the matters therein deposed to.

Certificate of appointment of trustee

125. A certificate of the court that a person has been appointed trustee underthe provisions of this Act shall be conclusive evidence of his appointment.

MISCELLANEOUSComputation of time

126.-(1) Where by the provisions of this Act any limited time from or afterany date or event is appointed or allowed for the doing of any act or the taking ofany proceeding, then in the computation of that limited time the same shall betaken as exclusive of the day of that date or of the happening of that event, and ascommencing at the beginning of the next following day; and the act or proceedingshall be done or taken at latest on the last day of that limited time as so computed,unless the last day is a Sunday or a public holiday or a day on which the offices ofthe court are wholly closed, in which case any act or proceeding shall be consideredas done or taken in due time if it is done or taken on the next day afterwards whichis not one of the days in this section specified.

(2) Where by the provisions of this Act, the time limited for doing any act orthing is less than six days, a Sunday, a public holiday and any other day on whichthe offices of the court are wholly closed shall be excluded in computing such time.

(3) Where by the provisions of this Act, any act or proceeding is directed to bedone or taken on a certain day, then, if that day happens to be one of the days inthis section specified, the act or proceeding shall be considered as done or taken indue time if it is done or taken on the next day afterwards which is not one of thedays in this section specified.

Service of notices

127. All notices and other documents for the service of which no special modeis directed may be sent by post to the last known address of the person to be servedtherewith.

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Formal defect not to invalidate proceedings128.-(1) No proceeding in bankruptcy shall be invalidated by any formal

defect or by any irregularity, unless the court before which an objection is made tothe proceeding is of opinion that substantial injustice has been caused by the defector irregularity, and that the injustice cannot be remedied by any order of the court.

(2) No defect or irregularity in the appointment or election of a receiver,trustee or member of a committee of inspection shall vitiate any act done by him ingood faith.

Exemption of deeds, etc., from stamp duty129. Every deed, transfer, assignment or other assurance relating solely to

freehold or leasehold property, or to any mortgage, charge or other encumbranceon, or any estate, right or interest in, any real or personal property which is part ofthe estate of any bankrupt, and which, after the execution of the deed, conveyance,assignment or other assurance, either at law or in equity, is or remains the estate ofthe bankrupt or of the trustee under the bankruptcy, and every power of attorney,proxy, paper, writ, order, certificate, affidavit, bond or other instrument or writingrelating solely to the property of any bankrupt, or to any proceeding under anybankruptcy, shall be exempt from stamp duty, except in respect of fees under thisAct.

For the purposes of this section "bankruptcy" shall include any proceedingunder the provisions of this Act whether before or after adjudication and"bankrupt" shall include any debtor proceeded against under this Act.

Acting of corporations, partners, etc.130. For all or any of the purposes of this Act, a corporation may act by any of

its officers authorised in that behalf under the seal of the corporation, a firm mayact by any of its members, and a person of unsound mind may act by his committeeor the appointed manager of his estate.

Certain provisions to bind Crown131. Save as provided in this Act, the provisions of this Act relating to the

remedies against the property of a debtor, the priorities of debts, the effect of acompostion or scheme of arrangement, and the effect of a discharge, shall bind theCrown.

UNCLAIMED FUNDS OR DIVIDENDSUnclaimed and undistrubuted dividends or funds under this Act

132.-(1) Where the trustee, under any bankruptcy composition or scheme,pursuant to this Act, or the Ordinance repealed by this Act, has under his controlany unclaimed dividend which has remained unclaimed for more than six months,or where, after making a final dividend, he has in his hands or under his control anyunclaimed or undistributed money arising from the property of the debtor, he shallforthwith pay it to the Bankruptcy Estates Account at such bank as may beauthorised under section 88. The official receiver shall furnish him with a certificateof receipt of the money so paid, which shall be an effectual discharge to him inrespect thereof.

The official receiver may at any time order any such trustee to submit to himan account verified by affidavit of the sums received and paid by him as aforesaid,and may direct and enforce an audit of the account.

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The official receiver may from time to time appoint a person to collect and getin all such unclaimed or undistributed funds or dividends, and for the purposes ofthis section the court shall have and, at the instance of the official receiver, mayexercise, all the powers conferred by this Act with respect to the discovery andrealization of the property of a debtor, and the provisions of Part II with respectthereto shall, with any necessary modifications, apply to proceedings under thissection.

(2) The provisions of this section shall not, except as expressly declaredherein, deprive any person of any larger or other right or remedy to which he maybe entitled against such trustee.

(3) Where any unclaimed dividends or undistributed money paid into theBankruptcy Estates Account in pursuance of this section shall have remained inthat account for a period of two years, the official receiver shall transfer suchmoney to the credit of the Bankruptcy Contingency Fund.

(4) Any person claiming to be entitled to any money paid into the BankruptcyEstates Account or the Bankruptcy Contingency Fund, pursuant to this section,may apply to the official receiver for payment to him of the same, and the officialreceiver, if satisfied that the person claiming is so entitled, shall make an order forthe payment to such person of the sum due. If the money claimed has been paid tothe credit of the Bankruptcy Contingency Fund and the said fund is insufficient tomeet the sum required to be paid, the deficiency shall be met by the ChiefAccountant out of the Consolidated Fund.

Any person dissatisfied with the decision of the official receiver in respect ofhis claim may appeal to the court.

PART VIII-BANKRUPTCY OFFENCESFraudulent debtors

133.-(1) Any person who has been adjudged bankrupt or in respect of whoseestate a receiving order has been made shall in each of the cases following be guiltyof an offence:-

Non-discovery of property

(a) if he does not to the best of his knowledge and belief' fully and trulydiscover to the trustee all his property, real and personal, and howand to whom and for what consideration and when he disposed of anypart thereof, except such part as has been dispose of in the ordinaryway of his trade (if any) or laid out in the ordinary expense of hisfamily, unless he proves that he had no intent to defraud;

(Amended by 37 of 1966, s. 14.)Non-delivery of property

(b) if he does not deliver up to the trustee, or as he directs, all such part ofhis real and personal property as is in his custody or under his control,and which he is required by law to deliver up, unless he proves that hehad no intent to defraud; (Amended by 37 of 1966, s. 14.)

Non-delivery of books, etc.

(c) if he does not deliver up to the trustee, or as he directs, all books,documents, papers and writings in his custody or under his controlrelating to his property or affairs, unless he proves that he had nointent to defraud;

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Concealment of property

(d) if, after the presentation of a bankruptcy petition by or against him, orwithin twelve months next before such presentation, he conceals anypart of his property to the value of twenty dollars or upwards, orconceals any debt due to or from him, unless he proves that he had nointent to defraud;

Removal of property

(e) if, after the presentation of a bankruptcy petition by or against him, orwithin twelve months next before such presentation, he fraudulentlyremoves any part of his property to the value of twenty dollars orupwards;

Omission in statement of affairs

(f) if he makes any material omission in any statement relating to his affairs,unless he proves that he had no intent to defraud;

Not informing trustee of false claim

(g) if, knowing or believing that a false debt has been proved by any personunder the bankruptcy, he fails for the period of a month to inform thetrustee thereof;

Preventing production of books, etc.

(h) if, after the presentation of a bankruptcy petition by or against him, heprevents the production of any book, document, paper or writingaffecting or relating to his property or affairs, unless he proves that hehad no intent to conceal the state of his affairs or to defeat the law;

Destruction, etc., of books, etc.

(i) if, after the presentation of a bankruptcy petition by or against him, orwithin twelve months next before such presentation, he conceals,destroys, mutilates or falsifies, or is privy to the concealment,destruction, mutilation or falsification of any book or documentaffecting or relating to his property or affairs, unless he proves that hehad no intent to conceal the state of his affairs or to defeat the law;

False entries in books, etc.

(j) if, after the presentation of a bankruptcy petition by or against him, orwithin twelve months next before such presentation, he makes or isprivy to the making of any false entry in any book or documentaffecting or relating to his property or affairs, unless he proves that hehad no intent to conceal the state of his affairs or to defeat the law;

Parting with, alteration, etc., of documents

(k) if, after the presentation of a bankruptcy petition by or against him, orwithin twelve months next before such presentation, he fraudulentlyparts with, alters, or makes any omission in, or is privy to thefraudulently parting with, altering, or making any omission in, anydocument affecting or relating to his property or affairs;

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Accounting for property by fictitious losses, etc.

(l) if, after the presentation of a bankruptcy petition by or against him, or atany meeting of his creditors within twelve months next before suchpresentation, he attempts to account for any part of his property byfictitious losses or expenses;

Obtaining property on credit by fraudif, within twelve months next before the presentation of a bankruptcy

petition by or against him, or, in the case, of a receiving order madeunder the provisions of section 99, before the date of the order, orafter the presentation of a bankruptcy petition and before the makingof a receiving order, he, by any false representations or other fraud,has obtained any property on credit and has not paid for the same;

Obtaining property on credit on pretence of carrying on business.(n) if, within twelve months next before the presentation of a bankruptcy

petition by or against him, or, in the case of a receiving order madeunder the provisions of section 99, before the date of the order, orafter the presentation of a bankruptcy petition and before the makingof a receiving order, he obtains under the false pretence of carryingon business, and, if a trader, of dealing in the ordinary way of histrade, any property on credit and has not paid for the same, unless heproves that he had no intent to defraud;

Pawning property obtained on credit

(o) if, within twelve months next before the presentation of a bankruptcypetition by or against him, or in the case of a receiving order madeunder the provisions of section 99, before the date of the order, orafter the presentation of a bankruptcy petition and before the makingof a receiving order, he pawns, pledges or disposes of any propertywhich he has obtained on credit and has not paid for, unless, in thecase of a trader, such pawning, pledging or disposing is in theordinary way of his trade, and unless in any case he proves that hehad no intent to defraud;

Obtaining consent of creditors by fraud(p) if he is guilty of any false representation or other fraud for the purpose

of obtaining the consent of his creditors or any of them to anagreement with reference to his affairs or to his bankruptcy;

(q) if he makes default in payment for the benefit of creditors of any portionof a salary or other income in respect of the payment of which thecourt is authorised to make an order.

For the purpose of this subsection, the expression "trustee" means the officialreceiver of the debtor's estate or trustee administering his estate for the benefit ofhis creditors.

(2) Any person guilty of an offence in the cases mentioned respectively inparagraphs (m), (n) and (o) of subsection (1) shall be liable on conviction toimprisonment for any term not exceeding five years.

(3) Where any person pawns, pledges or disposes of any property incircumstances which amount to an offence under paragraph (o) of subsection (1),

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every person who takes in pawn or pledge or otherwise receives the propertyknowing it to be pawned, pledged or disposed of in such circumstances as aforesaidshall be guilty of an offence and on conviction thereof liable to be punished in thesame way as if he had received the property knowing it to have been obtained incircumstances amounting to a felony under section 313 of the Penal Code.

(Cap. 17.)

Undischarged bankrupt obtaining credit134. Where an undischarged bankrupt-

(a) either alone or jointly with any other person obtains credit to the extentof twenty dollars or upwards from any person without informing thatperson that he is an undischarged bankrupt; or

(b) engages in any trade or business under a name other than that underwhich he was adjudicated bankrupt without disclosing to all personswith whom he enters into any business transaction the name underwhich he was adjudicated bankrupt,

he shall be guilty of an offence.

Frauds by bankrupts, etc.135.-(1) If any person who has been adjudged bankrupt or in respect of

whose estate a receiving order has been made-(a) in incurring any debt or liability, has obtained credit under false

pretences or by means of any other fraud; or(b) with intent to defraud his creditors or any of them, has made or caused

to be made any gift or transfer of, or charge on, his property; or(c) with intent to defraud his creditors, has concealed or removed any part

of his property since, or within two months before, the date of anyunsatisfied judgment or order for payment of money obtained againsthim,

he shall be guilty of an offence.(2) For the purposes of paragraph (b) of subsection (1) it is hereby declared

that if any person who has been adjudged bankrupt, or in respect of whose estate areceiving order has been made, has with intent to defraud his creditors or any ofthem caused or connived at the levying of any execution against his property heshall be deemed to have made a transfer of or charge on his property.

Bankrupt guilty of gambling, etc.136.-(1) Any person who has been adjudged bankrupt, or in respect of

whose estate a receiving order has been made, shall be guilty of an offence, if,having been engaged in any trade or business, and having outstanding at the date ofthe receiving order any debts contracted in the course and for the purposes of suchtrade or business-

(a) he has, within two years prior to the presentation of the bankruptcypetition, materially contributed to or increased the extent of hisinsolvency by gambling or by rash and hazardous speculations, andsuch gambling or speculations are unconnected with his trade orbusiness; or

(b) he has, between the date of the presentation of the petition and the dateof the receiving order, lost any part of his estate by such gambling orrash and hazardous speculations as aforesaid; or

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(c) on being required by the official receiver at any time, or in the course ofhis public examination by the court, to account for the loss of anysubstantial part of his estate incurred within a period of a year nextpreceding the date of the presentation of the bankruptcy petition, orbetween that date and the date of the receiving order, he fails to givea satisfactory explanation of the manner in which such loss wasincurred:

Provided that, in determining for the purposes of this section whether anyspeculations were rash and hazardous, the financial position of the accused personat the time when he entered into the speculations shall be taken into consideration.

(2) A prosecution shall not be instituted against any person under this sectionexcept by order of the court.

(3) Where a receiving order is made against a person under the provisions ofsection 99, this section shall apply as if for references to the presentation of apetition there were substituted references to the making of a receiving order.

Bankrupt failing to keep proper accounts

137.-(1) Any person who has been adjudged bankrupt or in respect of whoseestate a receiving order has been made shall be guilty of an offence, if, having beenengaged in any trade or business during any period in the two years immediatelypreceding the date of the presentation of the bankruptcy petition, he has not keptproper books of account throughout that period and throughout any further periodin which he was so engaged between the date of the presentation of the petition andthe date of the receiving order, or has not preserved all books of account so kept:

Provided that a person who has not kept or has not preserved books of accountshall not be convicted of an offence under this section-

(a) if his unsecured liabilities at the date of the receiving order did notexceed, in the case of a person who has not on any previous occasionbeen adjudged bankrupt or insolvent or made a composition orarrangement with his creditors, one thousand dollars or in any othercase two hundred dollars; or

(b) if he proves that in the circumstances in which he traded or carried onbusiness the omission was honest and excusable.

(2) A prosecution shall not be instituted against any person under this sectionexcept by order of the court.

(3) For the purposes of this section, a person shall be deemed not to have keptproper books of account if he has not kept such books or accounts as are necessaryto exhibit or explain his transactions and financial position in his trade or business,including a book or books containing entries from day to day in sufficient detail ofall cash received and cash paid, and, where the trade or business has involveddealings in goods, statements of annual stocktakings, and (except in the case ofgoods sold by way of retail trade to the actual consumer) accounts of all goods soldand purchased showing the buyers and sellers thereof in sufficient detail to enablethe goods and the buyers and sellers thereof to be identified.

(4) Paragraphs (i), (j) and (k) of subsection (1) of section 133 shall, in theirapplication to such books as aforesaid, have effect as if "two years next before thepresentation of the bankruptcy petition" were substituted for the time mentionedin those paragraphs as the time prior to the presentation within which the acts oromissions specified in those paragraphs constitute an offence.

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(5) Where a receiving order is made against a person under the provisions ofsection 99, this section shall apply as if for references to the presentation of apetition there were substituted references to the making of the receiving order.

Bankrupt absconding with property138. If any person who is adjudged bankrupt, or in respect of whose estate a

receiving order has been made, after the presentation of a bankruptcy petition byor against him, or within six months before such presentation, quits Fiji and takeswith him, or attempts or makes preparation to quit Fiji and take with him, any partof his property to the amount of forty dollars or upwards, which ought bylaw to bedivided amongst his creditors, he shall (unless he proves that he had no intent todefraud) be guilty of an offence.

False claim, etc.139. If any creditor, or any person claiming to be a creditor, in any bankruptcy

proceedings, wilfully and with intent to defraud makes 'any false claim, or anyproof, declaration or statement of account, which is untrue in any materialparticular, he shall be guilty of an offence, and shall on conviction be liable toimprisonment for a term not exceeding one year.

(Amended by 37 of 1966, s. 14.)

Order by court for prosecution on report of trustee140. Where an official receiver or trustee in a bankruptcy reports to the court

that in his opinion a debtor who has been adjudged bankrupt or in respect of whoseestate a receiving order has been made has been guilty of any offence under thisAct, or where the court is satisfied that upon the representation of any creditor ormember of the committee of inspection that there is ground to believe that thedebtor has been guilty of any such offence, the court shall, if it appears to the courtthat there is a reasonable probability that the debtor will be convicted, and that thecircumstances are such as to render a prosecution desirable, order that the debtorbe prosecuted for such offence.

Criminal liability after discharge or composition141. Where a debtor has been guilty of any criminal offence, he shall not be

exempt from being proceeded against therefor by reason that he has obtained hisdischarge or that a composition or scheme of arrangement has been accepted orapproved.

Trial and punishment of offences142. -(1) A person guilty of an offence under this Act in respect of which no

special penalty is imposed by this Act shall be liable; on conviction, toimprisonment for a term not exceeding two years: (Amended by 37 of 1966, s. 14.)

Provided that the maximum term of imprisonment which may be awarded onconviction for an offence under the provisions of section 135 shall be one year.

(2) Proceedings in respect of any such offence shall not be instituted after oneyear from the first discovery thereof, either by the official receiver or by the trusteein the bankruptcy, or, in the case of proceedings instituted by a creditor, by thecreditor, nor in any case shall they be instituted after three years from thecommission of the offence.

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67

Form of charge143. In a charge for an offence under the provisions of this Act, it shall be

sufficient to set forth the substance of the offence charged in the words of this Actspecifying the offence, or as near thereto as circumstances admit, without allegingor setting forth any debt, act of bankruptcy, trading, adjudication, or anyproceedings in, or order, warrant or document of, the court acting under this Act.

Director of Public Prosecutions to act in certain cases144. Where the court orders the prosecution of any person for any offence

under the provisions of this Act or for any offence arising out of or connected withany bankruptcy proceedings, it shall be the duty of the Director of PublicProsecutions to institute and carry on the prosecution:

Provided that, where the order of the court is made on the application of theofficial receiver and based on his report, the official receiver may institute theprosecution and carry on the proceedings, if or so long as those proceedings areconducted before a magistrates' court, unless in the course thereof circumstancesarise which render it desirable that the remainder of the proceedings should becarried on by the Director of Public Prosecutions.

Evidence as to frauds by agents145. A statement or admission made by any person in any compulsory

examination or deposition before the court on the hearing of any matter inbankruptcy shall not be admissible as evidence against that person in anyproceedings in respect of any offence relating to frauds by agents, bankers, orfactors.

PART IX-RULES

Application of Bankruptcy Rules 1915146.-(1) Unless and until the Chief Justice shall make rules under the powers

conferred by sections 117, 118 and 119, the Bankruptcy Rules, 1915, as from timeto time amended up to the date of the commencement of this Act, made under theBankruptcy Act, 1914, of the Imperial Parliament, and the scale of fees prescribedunder the said Act, are declared to be in force in Fiji and shall be read with andconsidered part of this Act:

Provided that-(a) it shall be lawful for the Chief Justice by rule to amend or revoke any of

the said rules; and(b) it shall be lawful for any court to construe the said rules with such verbal

alteration not affecting the substance as may be deemed expedient torender the same applicable to any matters before the court, providedalways that any such construction shall not be inconsistent with theprovisions of this Act.

(2) In any proceeding in bankruptcy taken in Fiji the decision of the court onthe construction to be placed on any of the provisions of the said rules, with respectto practice and procedure, shall be final, and no action, suit or other legalproceedings or process shall be brought, taken, issued or allowed in Fiji against anyperson in respect of any act or thing done or purporting to be done in pursuance ofany order or direction of the court under the aforesaid rules.

FIRST SCHEDULE

(Section 15)

MEETINGS OF CREDITORS

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First Meeting of Creditors1. The first meeting of creditors shall be summoned for a day not later than

twenty-eight days after the date of the receiving order, unless the court for anyspecial reason deem it expedient that the meeting be summoned for a later day.

2. The official receiver shall summon the meeting by giving not less than sixclear days' notice of the time and piace thereof in the Gazette.

3. The official receiver shall also, as soon as practicable, send to each creditormentioned in the debtor's statement of affairs, a notice of the time and place of thefirst meeting of creditors, accompanied by a summary of the debtor's statement ofaffairs, including the cause of his failure, and any observations thereon, which theofficial receiver may think fit to make; but the proceedings at the first meeting shallnot be invalidated by reason of any such notice or summary not having been sent orreceived before the meeting.

4. The meeting shall be held at such place as is in the opinion of the officialreceiver most convenient for the majority of the creditors.

5. The official receiver or the trustee may at any time summon a meeting ofcreditors, and shall do so whenever so directed by the court, or so requested by acreditor in accordance with the provisions of this Act.

Subsequent Meetings6. Meetings subsequent to the first meeting shall be summoned by sending

notice of the time and place thereof to each creditor at the address given in hisproof, or if he has not proved, at the address given in the debtor's statement ofaffairs, or at such other address as may be known to the person summoning themeeting.

Chairman7. The official receiver, or some person nominated by him, shall be the

chairman at the first meeting. The chairman at subsequent meetings shall be suchperson as the meeting by resolution appoint.

Voting8. A person shall not be entitled to vote as a creditor at the first or any other

meeting of creditors unless he has duly proved a debt provable in bankruptcy to bedue to him from the debtor, and the proof has been duly lodged before the timeappointed for the meeting.

9. A creditor shall not vote at any such meeting in respect of any unliquidatedor contingent debt, or any debt the value of which is not ascertained.

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10. For the purpose of voting, a secured creditor shall, unless he surrendershis security, state in his proof the particulars of his security, the date when it wasgiven, and the value at which he assesses it, and shall be entitled to vote only inrespect of the balance (if any) due to him, after deducting the value of his security.If he votes in respect of his whole debt he shall be deemed to have surrendered hissecurity unless the court on application is satisfied that the omission to value hissecurity has risen from inadvertence.

11. A creditor shall not vote in respect of any debt on or secured by a currentbill of exchange or promissory note held by him, unless he is willing to treat theliability to him thereon of every person who is liable thereon antecedently to thedebtor, and against whom a receiving order has not been made, as a security in hishands, and to estimate the value thereof, and for the purposes of voting, but not forthe purposes of dividend, to deduct it from his proof.

Trustee may Redeem Security12. It shall be competent to the trustee or to the official receiver, within

twenty-eight days after a proof estimating the value of a security as aforesaid hasbeen made use of in voting at any meeting, to require the creditor to give up thesecurity for the benefit of the creditors generally on payment of the value soestimated with an addition thereto of twenty per cent:

Provided that where a creditor has put a value on such security, he may, at anytime before he has been required to give up such security as aforesaid, correct suchvaluation by a new proof and deduct 1such new value from his debt, but in that casesuch addition of twenty per cent shall not be made if the trustee requires thesecurity to be given up.

Firms13. If a receiving order is made against one partner of a firm, any creditor to

whom that partner is indebted jointly with the other partners of the firm, or any ofthem, may prove his debt for the purpose of voting at any meeting of creditors, andshall be entitled to vote thereat.

Power of Chairman14. The chairman of a meeting shall have power to admit or reject a proof for

the purpose of voting, but his decision shall be subject to appeal to the court. If heis in doubt whether the proof of a creditor should be admitted or rejected he shallmark the proof as objected to, and shall allow the creditor to vote, subject to thevote being declared invalid in the event of the objection being sustained.

Proxies15. A creditor may vote either in person or by proxy.

16. Every instrument of proxy shall be in the prescribed form, and shall beissued by the official receiver of the debtor's estate or by any deputy officialreceiver, or, after the appointment of a trustee, by the trustee, and every insertiontherein shall be in the handwriting of the person giving the proxy, or of anymanager or clerk, or other person in his regular employment or of any personauthorised to administer oaths in the court.

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17. General and special forms of proxy shall be spent to the creditors togetherwith a notice summoning a meeting of creditors, and neither the name nor thedescription of the official receiver, or of any other person shall be printed orinserted in the body of any instrument of proxy before it is so sent.

18. A creditor may given a general proxy to his manager or clerk, or any otherperson in his regular employment. In such case the instrument of proxy shall statethe relation in which the person to act thereunder stands to the creditor.

19. A creditor may give a special proxy to any person to vote at any specifiedmeeting or adjournment thereof on all or any of the following matters:-

(a) for or against any specific proposal for a composition or scheme ofarrangement;

(b) for or against the appointment of any specified person as trustee at aspecified rate of remuneration, or as member of the committee ofinspection, or for or against the continuance in office of any specifiedperson as trustee or member of a committee of inspection;

(c) on all questions relating to any matter other than those above referredto, arising at any specified meeting or adjournment thereof.

20. A proxy shall not be used unless it is deposited with the official receiver ortrustee before the meeting at which it is to be used.

21. Where it appears to the satisfaction of the court that any solicitation hasbeen used by or on behalf of a trustee or receiver in obtaining proxies, or inprocuring the trusteeship or receivership, except by the direction of a meeting ofcreditors, the court shall have power, if it thinks fit, to order that no remunerationshall be allowed to the person by whom or on whose behalf such solicitation mayhave been exercised, notwithstanding any resolution of the committee of inspectionor of the creditors to the contrary.

22. A creditor may appoint the official receiver to act in manner prescribed ashis general or special proxy.

Adjournment23. The chairman of a meeting may, with the consent of the meeting, adjourn

the meeting from time to time and from place to place.

Quorum24. A meeting shall not be competent to act for any purpose, except the

election of a chairman, the proving of debts, and the adjournment of the meeting,unless there are present, or represented thereat, at least three creditors, or all thecreditors if their number does not exceed three.

25. If within half an hour from the time appointed for the meeting a quorum ofcreditors is not present or represented, the meeting shall be adjourned to suchother day as the chairman may appoint, being not less than three nor more thantwenty-one days later.

Cap. 48

Ed. 1978

Bankruptcy

7 1

Minutes26. The chairman of every meeting shall cause minutes of the proceedings at

the meeting to be drawn up and fairly entered in a book kept for that purpose, andthe minutes shall be signed by him or by the chairman of the next ensuing meeting.

Proxy-holders not to Vote on certain Resolutions27. No person acting either under a general or special proxy shall vote in

favour of any resolution which would directly or indirectly place himself, hispartner or employer in a position to receive any remuneration out of the estate ofthe debtor otherwise than as a creditor rateably with the other creditors of thedebtor:

Provided that where any person holds special proxies to vote for theappointment of himself as trustee he may use the said proxies and vote accordingly.

28. The vote of the trustee, or of his partner, clerk, barrister and solicitor orhis clerk, either as creditor, or as proxy for a creditor, shall not be reckoned in themajority required for passing any resolution affecting the remuneration or conductof the trustee.

SECOND SCHEDULE

(Section 34)

Proofs of Debts in Ordinary Cases1. Every creditor shall prove his debt as soon as may be after the making of a

receiving order.

2. A debt may be proved by delivering or sending through the post in aprepaid letter to the official receiver, or, if a trustee has been appointed, to thetrustee, an affidavit verifying the debt.

3. The affidavit may be made by the creditor himself, or by some personauthorised by or on behalf of the creditor. If made by a person so authorised it shallstate his authority and means of knowledge.

4. The affidavit shall contain or refer to a statement of account showing theparticulars of the debt, and shall specify the vouchers, if any, by which the same canbe substantiated. The official receiver or trustee may at any time call for theproduction of the vouchers.

5. The affidavit shall state whether the creditor is or is not a secured creditor,and if it is found at any time that the affidavit made by or on behalf of a securedcreditor has omitted to state that he is a secured creditor, the secured creditor shallsurrender his security to the official receiver or trustee for the general benefit of thecreditors unless the court on application is satisfied that the omission has arisenfrom inadvertence, and in that case the court may allow the affidavit to be amended

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upon such terms as to the repayment of any dividends or otherwise as the court mayconsider to be just.

6. A creditor shall bear the cost of proving his debt, unless the court otherwisespecially orders.

Inspection of Proofs by Creditors7. Every creditor who has lodged a proof shall be entitled to see and examine

the proofs of other creditors before the first meeting, and at all reasonable times.

Deduction of Trade Discounts8. A creditor proving his debt shall deduct therefrom all trade discounts, but

he shall not be compelled to deduct any discount, not exceeding five per cent on thenet amount of his claim, which he may have agreed to allow for payment in cash.

Proof by Secured Creditors9. If a secured creditor realizes his security, he may prove for the balance due

to him, after deducting the net amount realized.

10. If a secured creditor surrenders his security to the official receiver ortrustee for the general benefit of the creditors, he may prove for his whole debt.

Assessment of Security11. If a secured creditor does not either realize or surrender his security, he

shall, before ranking for dividend, state in his proof the particulars of his security,the date when it was given, and the value at which he assesses it, and shall beentitled to receive a dividend only in respect of the balance due to him afterdeducting the value so assessed.

Redemption of Security12. (a) Where a security is so valued the trustee may at any time redeem it on

payment to the creditor of the assessed value.(b) If the trustee is dissatisfied with the value at which a security is assessed, he

may require that the property comprised in any security so valued be offered forsale at such times and on such terms and conditions as may be agreed on betweenthe creditor and the trustee, or as, in default of such agreement, the court maydirect. If the sale be by public auction the creditor, or the trustee on behalf of theestate, may bid or purchase.

Creditor may call on Trustee to Redeem(c) The creditor may at any time, by notice in writing, require the trustee to

elect whether he will or will not exercise his power of redeeming the security orrequiring it to be realized, and if the trustee does not, within six months afterreceiving the notice, signify in writing to the creditor his election to exercise thepower, he shall not be entitled to exercise it; and the equity of redemption, or anyother interest in the property comprised in the security which is vested' in thetrustee, shall vest in the creditor and the amount of his debt shall be reduced by theamount at which the security has been valued.

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Amendment of Assessment13. Where a creditor has so valued his security, he may at any time amend the

valuation and proof on showing to the satisfaction of the trustee, or the court, thatthe valuation and proof were made bona fide on a mistaken estimate or that thesecurity has diminished or increased in value since its previous valuation; but everysuch amendment shall be made at the cost of the creditor, and upon such terms asthe court shall order, unless the trustee shall allow the amendment withoutapplication to the court.

14. Where a valuation has been amended in accordance with the foregoingrule, the creditor shall forthwith repay any surplus dividend which he may havereceived in excess of that to which he would have been entitled on the amendedvaluation, or, as the case may be, shall be entitled to be paid out of any money, forthe time being available for dividend, any dividend or share of dividend, which hemay have failed to receive by reason of the inaccuracy of the original valuation,before that money is made applicable to the payment of any future dividend, but heshall not be entitled to disturb the distribution of any dividend declared before thedate of the amendment.

15. If a creditor after having valued his security subsequently realize it, or if itis realized under the provisions of rule 12, the net amount realized shall besubstituted for the amount of any valuation previously made by the creditor andshall be treated in all respects as an amended valuation made by the creditor.

16. If a secured creditor does not comply with the foregoing rules he shall beexcluded from all share in any dividend.

17. Subject to the provisions of rule 12, a creditor shall in no case receive morethan one hundred cents in the dollar, and interest as provided by this Act.

Proof in Respect of Distinct Contracts18. If a debtor was, at the date of the receiving order, liable in respect of

distinct contracts as a member of two or more distinct firms, or as a sole contractor,and also as a member of a firm, the circumstances that the firms are in whole or inpart composed of the same individuals, or that the sole contractor is also one of thejoint contractors, shall not prevent proof in respect of the contracts, against theproperties respectively liable on the contracts.

Rent and other Periodical Payments19. When any rent or other payment falls due at stated periods, and the

receiving order is made at any time other than one of those periods, the personsentitled to the rent or payment may prove for a proportionate part thereof up to thedate of the order as if the rent or payment grew due from day to day.

Interest where it is not agreed for20. On any debt or sum certain, payable at a certain time or otherwise,

whereon interest is not reserved or agreed for, and which is overdue at the date ofthe receiving order and provable in bankruptcy the creditor may prove for interest

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at a rate not exceeding four per cent per annum to the date of the order from thetime when the debt or sum was payable, if the debt or sum is payable by virtue of awritten instrument at a certain time, and if payable otherwise, then from the timewhen a demand in writing has been made giving the debtor notice that interest willbe claimed from the date of the demand until the time of payment.

Future Debts21. A creditor may prove for a debt not payable when the debtor committed

an act of bankruptcy as if it were payable presently, and may receive dividendsequally with the other creditors deducting only thereout a rebate of interest at therate of five per cent per annum computed from the declaration of a dividend to thetime when the debt would have become payable, according to the terms on which itwas contracted.

Admission or rejection of proofs22. The trustee shall examine every proof and the grounds of the debt, and in

writing admit or reject it, in whole or in part, or require further evidence in supportof it. If he rejects a proof he shall state in writing to the creditor the grounds of therejection.

23. If the trustee thinks that a proof has been improperly admitted the courtmay, on the application of the trustee, after notice to the creditor who made theproof, expunge the proof or reduce its amount.

Appeal24. If a creditor is dissatisfied with the decision of the trustee in respect of a

proof, the court may, on the application of the creditor, reverse or vary thedecision.

25. The court may also expunge or reduce a proof upon the application of acreditor if the trustee declines to interfere in the matter, or, in the case of acomposition or scheme, upon the application of the debtor.

26. For the purpose of any of his duties in relation to proofs the trustee mayadminister oaths and take affidavits.

27. The official receiver, before the appointment of a trustee, shall have allthe powers of a trustee with respect to the examination, admission, and rejection ofproofs, and any act or decision of his in relation thereto shall be subject to the likeappeal.

Controlled by Ministry of the Attorney-General

Cap. 48 Ed. 1978

Bankruptcy

1Subsidiary Legislation

CHAPTER 48

BANKRUPTCY

SECTION 119-BANKRUPTCY (FEES) RULES

Made by the Chief JusticeRules 20th Jan., 1969, 6th Nov., 1974

Short title1. These Rules may be cited as the Bankruptcy (Fees) Rules.

Interpretation2. In the Schedule any reference to a numbered rule or form is a reference to

the rule or form so numbered in the Bankruptcy Rules, 1915, as from time to timeamended up to the commencement of the Act.

Present scale of fees not to remain in force3. The scale of fees prescribed under the Bankruptcy Act, 1914, of the

Imperial Parliament, shall forthwith be no longer in force in Fiji.

Fees in Supreme Court4. The fees to be taken in the Supreme Court Registry for and in respect of

proceedings in bankruptcy shall be those set out in Part 1 of the Schedule and,where no fees are prescribed in Part 1, such of those fees set out in Part 1 ofAppendix 2 of the Supreme Court Rules as may be applicable, mutatis mutandis.

Fees of Official Receiver5. The fees to be taken and percentages to be charged by the Official Receiver

for and in respect of proceedings in bankruptcy shall be those set out in Part 2 of theSchedule.

SCHEDULE

PART 1

FEES TO BE TAKEN IN THE SUPREME COURT

1. On filing a declaration by a debtor of inability to pay his debts .... 1.002. On issuing a bankruptcy notice, including two sealed copies ...... 2-00

And for every additional sealed copy required after the first twocopies.................................................. 0.50

3. (a) On presenting a bankruptcy petition-(i) If presented by the debtor ............................ 1000(ii) If presented by a creditor ............................ 1200

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Bankruptcy

Cap. 48 Ed. 1978Subsidiary Legislation

$(b) On filing a petition under section 117 of the Act-

(i) If filed by the peFsonal representative of the deceaseddebtor....................................... 10-00

(ii) If filed by a creditor ..................................

1200(No additional fee shall be taken for sealing the receiving orderor an order dismissing the petition or granting leave to withdrawthe petition).

4.

On sealing a receiving order under section 99 of the Act .........

10-005. On an application for annulment of adjudication or rescission of

receiving order on the ground that the debts have been paid infull..................................................... 5.00(One fee only shall be charged where annulment andrescission are the subject of one application).

6. On an application for an order of discharge, not including expensesof gazetting the same in respect of each debtor covered by theapplication.............................................. 3.00

7. On an application for leave to act as a director or take part in themanagement of a company ................................

4-008. On an application to the Court to approve a composition, a fee

computed at the following rates on the gross amount of thecomposition-

(i) On every $200 or fraction of $200 up to $10,000 ..........

3.00(ii) On every $200 or fraction of $200 beyond $10,000........

1-50(For the purpose of calculating this fee the gross amount meansthe amount to be provided under the terms of the compositionfor ordinary and preferential creditors, and for costs, charges andexpenses, and for fees and percentages (other than this fee).

Where a fee has been taken on a previous application to theCourt to approve a composition, or where a fee has been paid tothe Official Receiver on the audit of the accounts, four-fifths ofthe amount thereof shall be deducted from the fee payable on anapplication to approve a composition).

9. On an application to the Court to approve a scheme ofarrangement, a fee computed at the following rates on the grossamount of the estimated assets (but not exceeding the grossamount of the unsecured liabilities)-

(i) On every $200 or fraction of $200 up to $10,000 ..........

3.00(ii) On every $200 or fraction of $200 beyond $10,000........

1-50Provided that where a fee has been taken on a previous

application to the Court to approve a scheme, or where afee has been paid to the Official Receiver on the audit ofthe accounts four-fifths of the amount thereof shall bededucted from the fee payable on an application toapprove a scheme.

10. Where a Judge deals with a judgment summons under section 99 ofthe Act-

(i) On the issue of the judgment summons or of a successivesummons ..........................

. . . . . . . . . . . . .

1-00(ii) On sealing an order, other than a receiving order, made on

a judgment summons................................

2-00

Cap. 48 Ed. 1978

Bankruptcy

3

Subsidiary Legislation

11. On application for the hearing of a public examination of a debtor .

1.00(No additional fee shall be taken in respect of the hearing of thepublic examination)

12. For taking an affidavit or an affirmation or a declaration, except forproof of debts and except a declaration by a shorthand writerunder rule 67 (Form 71)

(i) For each person making the same .... . .................

0-50(ii) in addition, for each exhibit or schedule therein referred to

and required to be marked ...........................

0.20

PART 2

FEES TO BE TAKEN BY THE OFFICIAL RECEIVER

14. On a proof of debt above $4 (other than a proof of workmen'swages under rule 251) ...........................................

0-5015. On an application to the Official Receiver to appoint a special

manager or to carry on the business of a debtor ...............

1.0016. On an application by a trustee to the Official Receiver acting as

committee of inspection under section 22 of the Act or rule 324-

(a) Where the assets are certified by the Official Receiver asnot likely to realise more than $1,000................

1.00(b) Where the assets are likely to exceed $1,000 ............

2-0017. On an application to the Official Receiver under section 132 of the

Act for payment of money out of the Bankruptcy EstatesAccount or the Bankruptcy Contingency Fund ...............

0-5018. On an application to the Official Receiver-

(a) For the re-issue of a lapsed cheque or money order; or(b) After six months from the date of issue, for the re-issue of

a lapsed payable order, in respect of moneys standing tothe credit of the Bankruptcy Estates Account or theBankruptcy Contingency Fund .....................

0.5019. On filing a bond with the Official Receiver .....................

1.0020. For the Official Receiver taking an affidavit or an affirmation or a

declaration, except for proof of debts and except a declaration bya shorthand writer under rule 67 (Form 71)

(i) For each person making the same ......................

0.50(ii) In addition, for each exhibit or schedule therein referred to

and required to be marked ...........................

0.2021. On the insertion in the Gazette and a newspaper of a notice by the

Official Receiver authorised by the Act or the Bankruptcy Rules,1915, the amount necessary to pay the cost of such a notice. (TheOfficial Receiver may, require the deposit of such amount, not.exceeding $1000 in the case of a debtor petitioning and $25,00 incase of a creditor petitioning, as he thinks fit, to be made inrespect of this fee before the petition is filed.)

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Bankruptcy

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Ed. 1978

Subsidiary Legislation

22. On the net assets realised or brought to credit by the OfficialReceiver, whether acting as interim receiver, receiver, or trustee,after deducting any sums paid to secured creditors in respect oftheir securities, and not being assets realised by a specialmanager or moneys received and spent in carrying on thebusiness of the debtor, and on net assets realised by the OfficialReceiver when acting as trustee to administer a debtor's propertyunder a composition or scheme, after deducting any sums paid tosecured creditors in respect of their securities and not beingmoneys received and spent in carrying on the business of adebtor-

On the first $2,000 or fraction thereof per cent ..............

7-50On the next $3,000 or fraction thereof per cent

. . . . . . . . . . . . .

6-00On the next $5,000 or fraction thereof per cent .............

4-50On the next $10,000 or fraction thereof per cent ............

3-00On all further sums .....................................

2-0023. On the amount distributed to creditors by the Official Receiver

when acting as trustee under a composition-On the first $1,000 or fraction thereof per cent ..............

3.00On the next $1,000 or fraction thereof per cent .............

2-25On the next $2,000 or fraction thereof per cent .............

1.50On all further sums per cent

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

0.7524. On the amount distributed in dividend or otherwise to unsecured

creditors by the Official Receiver when acting otherwise than astrustee under a composition-

On the first $2,000 or fraction thereof per cent ..............

3-75On the next $3,000 or fraction thereof per cent

. . . . . . . . . . . . .

3.00On the next $5,000 or fraction thereof per cent ..............

2-25On the next $10,000 or fraction thereof per cent ............

1.50On all further sums .....................................

1.0025. For the Official Receiver acting as interim receiver of the property

of a debtor in addition to the percentage chargeable onrealisation, on every order.................................

9.00And, in addition, where the order is in force for a longer periodthan fourteen days, for every seven days after the first fourteen,and for every fraction of seven days .........................

3-0026. For each notice by the Official Receiver to a creditor of a first or

any other meeting, or sitting of the Court ....................

0.1527. For each notice by the Official Receiver to a creditor of an

adjourned meeting or an adjourned sitting of the Court ........

0-1528. For the Official Receiver supervising a special manager or the

carrying on of a debtor's business, where the estimated assetsexceed $200, a fee according to the following scale-

If the gross assets are estimated by the Official Receiver not toexceed $1,000 per week ...............................

3-00If to exceed $1,000 but not to exceed $10,000 per week.......

6.00If to exceed $10,000 but not to exceed $20,000 per week......

9.00If to exceed $20,000 but not to exceed $40,000 per week

1200If to exceed $40,000 ....................................

1500

Cap. 48 Ed. 1978

Bankruptcy

5Subsidiary Legislation

29. For travelling, lodging, subsistence, keeping possession and othernecessary work performed by the Official Receiver incidental tohis duties ............................................... reasonable

expenses30. For official stationery, printing, books, forms and postages, each

estate- ................................................(i) For every ten applications to debtors to an estate, or

fraction often ......................................

0-30(ii) For every ten creditors or fraction of ten where the

estimated assets exceed $200 .........................

1.50(iii) Where the estimated assets do not exceed $200-

For every ten creditors or fraction of ten up to twenty

1-50For every ten creditors or fractions of ten above

twenty...................................... 0-7531. On the audit of the accounts forwarded by a trustee to the Official

Receiver-On every $200 or fraction of $200 up to $10,000 of the gross

amount of the assets realised and brought to credit ........

3-00On every $200 or fraction of $200 of the gross amount of the

assets realised and brought to credit in excess of $10,000 ...

1-50Provided that, where a fee has been taken on an applicationto approve a composition or scheme of arrangement, four-fifths of the amount thereof shall be deducted from this fee.

32. On every application for release by trustee in non-summary cases-On every $200 or fraction of $200 of the gross amount of the

assets realised and brought to credit .....................

0.3533. On every payment under section 132 of the Act of money out of the

Bankruptcy Estates Account-On every $6-00 or part thereof-(a) of each dividend, where the money consists of unclaimed

dividends .......................................

0.10(b) of the amount paid out, where the money consists of

undistributed funds or balances ....................

0.1034.

(i) For serving a bankruptcy notice bankruptcy petition, orsubpoena, or an order not serviceable by post ...........

1.00(ii) For serving an order servicable by post .................

0-15These fees include the making of the affidavit of service

but not the oath fee or the stamp duty.35. For the notice to creditors of a debtor's application for an order of

discharge:For each creditor .......................................

0.15

Controlled by Ministry of the Attorney-General